IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 OP(C).No. 3632 of 2011(O) ------------------------- CMA.18/2011 of DISTRICT COURT, KOTTAYAM OS.122/2009 of MUNSIFF COURT, VAIKOM .................... PETITIONERS ------------------------------- 1. THOMAS, S/O.MATHAI, POTHALATHIL HOUSE, KALLARA VILLAGE, KALLARA KARA, VAIKOM TALUK. 2. JAMES, S/O.MATHAI, POTHALATHIL HOUSE, KALLARA VILLAGE, KALLARA KARA, VAIKOM TALUK. 3. JOSE, S/O.MATHAI, POTHALATHIL HOUSE, KALLARA VILLAGE, KALLARA KARA, VAIKOM TALUK. BY ADV. SRI.A.K.HARIDAS RESPONDENT: --------------- JOSE JACOB, CHERUKATTUPARAMBIL, KALLARA VILLAGE, VAIKOM TALUK. ADV. SRI.S.RADHAKRISHNAN FOR R-1 SRI.S.RAJ MOHAN FOR R1 SMT.LATHIKA MOHAN FOR R1 KUM.K.SARITHA (PALLOM) FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3632 of 2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF PLAINT IN OS NO.122/2009 ON THE FILE OF THE MUNSIFF'S COURT, VAIKOM. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM FILED BY THE DEFENDANTS IN OS.122/2009 ON THE FILE OF THE MUNSIFF'S COURT, VAIKOM. EXT.P3 TRUE COPY OF THE ORDER DATED 5/2/2011 IN IA.134/11 IN OS.122/2009 OF THE MUNSIFF'S COURT. EXT.P4 TRUE COPY OF THE ORDER DATED 25/10/2011 IN CMA.18/2011 IN AS.76/2011 OF THE DISTRICT COURT, KOTTAYAM. RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3632 of 2011 --------------------------------------- Dated this 11th day of November, 2011 JUDGMENT This original petition is at the instance of petitioners/defendants challenging the condition imposed by the learned District Judge, Kottayam while disposing of C.M.A.No.18 of 2011 which in turn was in challenge of order passed by the learned Munsiff, Vaikom on I.A.No.134 of 2011 in O.S.No.122 of 2009. That is a suit filed by the respondent for a decree for prohibitory and mandatory injunction. The dispute concern item No.2, way which according to the respondent is part of his property and which petitioners/defendants claim to be a panchayath way. The suit was decreed ex parte directing petitioner to remove the alleged obstructions. Petitioner filed I.A.No.134 of 2011 to set aside the ex parte decree. Trial court allowed that application subject to two conditions - payment of cost of `.1,500/- and removal of the obstruction from item No.2 way. Petitioner was not satisfied with the conditions and filed C.M.A.No.18 of 2011. In the meantime petitioner challenged the ex parte decree in A.S.No.76 of 2011. Learned District Judge disposed of A.S.No.76 of 2011 and C.M.A.No.18 of 2011 by a O.P(C).No.3632 of 2011 -: 2 :- common judgment. The regular appeal was dismissed and the C.M appeal was allowed in part to the extent that condition for payment of cost was set aside. The condition which directed petitioners to remove obstruction was retained. Petitioners are aggrieved by the said condition and has filed this original petition. 2. Learned counsel for petitioners has contended that condition imposed by the trial court and upheld by the learned District Judge amounted to granting a decree in part which is not permissible under Rule 13 of Order IX of the Code of Civil Procedure (for short, "the Code”). According to the learned counsel, at any rate the condition is very onerous and placed certain decisions in support of the contention. Learned counsel for petitioners contended that reports submitted by the Advocate Commissioner would show that the way in question has been obstructed, respondent has to remove his rubber trees kept in his property through the disputed way and on the facts, circumstances and law there is no reason to interfere with the condition imposed by the trial court and retained by the learned District Judge. 3. It would appear from the submissions made by learned counsel on both sides that petitioners challenged in the C.M appeal the order of trial court allowing the application to set O.P(C).No.3632 of 2011 -: 3 :- aside the ex parte decree though on terms. Petitioners are aggrieved by the conditions and it is against those conditions that they filed C.M.A.No.18 of 2011. Under order 43 of Rule 1(d) of the Code, an appeal is contemplated only against an order under Rule 13 of Order IX rejecting an application for an order to set aside the ex parte decree. I am assured by the learned counsel for petitioners that their challenge in the C.M appeal was not to any order rejecting an application to set aside the ex parte but the appeal was against imposition of conditions. It would appear that maintainability of the appeal was not considered by the learned District Judge nor pointed out to the learned District Judge. I must also bear in mind that the appeal is a statutory right and not a right inherent in anybody. Therefore maintainability of the C.M appeal has to be decided in accordance with Order 43 of Rule 1(d) of the Code. This question appears to have escaped the notice of learned District Judge. 4. True that this original petition is filed by the petitioners in whose favour learned District Judge has decided C.M.A.No.18 of 2011 in part and the judgment of learned District Judge is not challenged by the respondent/plaintiff. But, I must bear in mind that in this proceeding, I am exercising supervisory jurisdiction under Art.227 of the Constitution ie, to find whether O.P(C).No.3632 of 2011 -: 4 :- the lower appellate court has transgressed its limits in entertaining the C.M appeal and passing the judgment. Viewed in that line, I am inclined to think that even in the absence of a separate challenge from the respondent/plaintiff, this Court is competent to interfere in exercise of its power under Art.227 of the Constitution to ensure that the subordinate Courts did not traverse their limits. The question of maintainability of the C.M appeal has to be decided by the learned District Judge. But I make it clear that since the matter is to be decided by the learned District Judge, any opinion made herein shall not be taken as a final verdict in the matter. Resultantly this original petition is disposed of as follows: The judgment in C.M.A.No.18 of 2011 of the Court of learned District Judge, Kottayam is set aside and the C.M appeal is remitted to the learned District Judge to consider its maintainability and decide the appeal. Parties shall appear before the learned District Judge on 26.11.2011. (THOMAS P. JOSEPH, JUDGE) Sbna/-