IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP(C).No. 2334 of 2011(O) ------------------------- AGAINST THE ORDER IN IA 134/2011 IN CMA.1/2011 of PRINCIPAL SUB COURT,KOCHI OS.332/2010 of PRINCIPAL MUNSIFF COURT, KOCHI .................... PETITIONER (S): -------------------------- 1. JACOB, AGED ABOUT 55, S/O.JOSE, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN. 2. BAIJU, AGED ABOUT 30, S/O.JACOB, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN. BY ADV. SRI.PRAKASH P.GEORGE RESPONDENT(S): --------------------------- 1. SATHEESHAN A.K,AGED 45, S/O.LATE KRISHNAN, ANCHALASSERY HOUSE, ELAMKUNNAPUZHA, VYPEEEN. 2. BIJU, AGED 33, S/O.JACOB, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN. 3. JIJO,AGED 27, S/O.JACOB, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2334/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.332/2010 OF THE MUNSIFF'S COURT, KOCHI. P2: COPY OF THE PETITION FOR TEMPORARY PROHIBITORY INJUNCTION I.A.1723/2010. P3: COPY OF THE WRITTEN STATEMENT IN O.S.NO.332/2010. P4: COPY OF THE COUNTER AFFIDAVIT IN I.A.1723/2010. P5: COPY OF THE COMMISSION APPLICATION, IA 2165/2010. P6: COPY OF THE I.A.2160/2010 FOR REMITTING BACK THE COMMISSION REPORT. P7: COYP OF THE COMMISSION REPORT IN O.S.332/2010. P8: COPY OF THE OBJECTION TO THE COMMISSION REPORT. P9: COPY OF THE PETITION FOR MANDATORY INJUNCTION IA 1809/2010. P10: COPY OF THE COUNTER AFFIDAVIT IN I.A.1809/2010. P11: COPY OF THE ORDER DTD. 18/12/2010 IN I.A.NO.1809/2010. P12: COPY OF THE CMA 1/2011. P13: COPY OF THE STAY PETITION IN I.A.134/2011. P14: COPY OF THE JUDGMENT IN OP(CIVIL) 723/2001 OF THIS HONOURABLE COURT. P15: COPY OF THE SAID ORDER DTD. 12/07/2011 IN I.A.134/2011 IN CMA 1/2001. P16: COPY OF IA.NO.437/2001 IN O.S.332/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2334 of 2011 --------------------------------------- Dated this 21st day of July, 2011 JUDGMENT Petitioners are defendants 1 and 3 in O.S.No.332 of 2010 of the Court of learned Munsiff, Kochi. That is a suit filed by the first respondent/plaintiff for a decree for mandatory and prohibitory injunction. By mandatory injunction, he wanted petitioners and another to remove the E schedule fence which according to the first respondent was constructed by petitioners and others blocking his only way to the plaint A schedule belonging to him at a time when he was away in the ship. First petitioner stated that he is residing about 5kms away from the suit property. There was an order of temporary injunction passed on 29.09.2010 which was served on petitioners and others on 30.09.2010. First respondent filed I.A.No.1809 of 2010 in the trial court for an order of mandatory injunction to direct petitioner and others remove the fence at a length of 2feet on the western extremity of the northern fence and the fence at a length of 2feet at the south eastern portion of plaint A schedule. That application, against the objection of petitioners was allowed which petitioners challenged in C.M.A.No.1 of 2011 before O.P(C).No.2334 of 2011 -: 2 :- learned Sub Judge, Kochi. Petitioners filed I.A.No.134 of 2011 in that appeal seeking stay of operation of the order of mandatory injunction. Since petitioners found that there was delay in the disposal of that application they approached this Court in O.P(C). No.723 of 2011. This Court by judgment dated February 25, 2011 directed learned Sub Judge to dispose of I.A.No.134 of 2011 (in C.M.A.No.1 of 2011) as expeditiously as possible after affording opportunity of being heard to both parties. Learned Sub Judge passed the impugned order (only) on July 12, 2011 (though this Court pronounced judgment on February 25, 2011 directing early disposal) dismissing I.A.No.134 of 2011. Petitioners are aggrieved by the said order and has come up with this original petition. 2. It is contended by the learned counsel that even as per plaint averments the alleged closure of the disputed way was prior to the suit and in the circumstance granting mandatory injunction as prayed for will have the effect of passing a decree as prayed for in the suit. According to the learned counsel, first respondent has alternative access from the southern side which was not noted by the advocate commissioner who was appointed ex parte. It is contended that petitioners had preferred objection O.P(C).No.2334 of 2011 -: 3 :- to the report of the Advocate Commissioner and filed application to remit the said report and sketch to note the existence of that alternative way. But without disposing of that application learned Munsiff has passed the impugned order directing petitioners to remove the fence. Learned counsel contended that if the Advocate Commissioner had inspected the property as requested by petitioners the existence of the alternative way could have been noted. It is also contended by the learned counsel that it is without hearing petitioners that learned Sub Judge has passed the impugned order. 3. If the impugned order was passed without hearing petitioners, remedy was by way of a review and not by way of original petition under Art.227 of the Constitution. Now I am concerned with the question whether interference is required with the order dismissing I.A.No.134 of 2011. 4. No doubt, normally the Court may not be inclined to grant an order of mandatory injunction which may have the effect of granting a decree in the suit. But, it is also not as if the Court is powerless to grant temporary/, mandatory injunction even to restore position of the property anterior to the suit. Decisions on the point say that if nuisance caused by the act of the defendant O.P(C).No.2334 of 2011 -: 4 :- is perennial it is open to the Court to grant relief by way of mandatory injunction even to alter the position which existed on the date of institution of the suit. The question should depend on the facts and circumstances of the case. 5. Here, first respondent came with the allegation that the pathway which was going through the property of petitioners was closed in his absence and that constrained him to file the suit for a mandatory and prohibitory injunction. It is the case of first respondent that plaint A schedule belong to him and the 13.81 cents on its south east belonging to one George was sold to Beena. The said Beena sold 6cents to the first petitioner after providing pathway on the north of the property at a width of about 3feet. First petitioner constructed a house in the said 6 cents (plaint B schedule). On the south-east of the remaining property of Beena is the property belonging to St.Sebastian's Seva Sangam and on the further east is the public road. It is the case of the first respondent that access to plaint A schedule was from the public road on the east entering through plaint B schedule (6 cents belonging to the first petitioner). It is while so that the first petitioner and his children (allegedly) closed the pathway to the A schedule. Immediately after the institution of O.P(C).No.2334 of 2011 -: 5 :- the suit an Advocate Commissioner (ex parte) inspected the property and submitted Ext.P7, report. He has reported that plaint A schedule is situated in L-shape and that he gained access to the plaint A schedule from the public road on the eastern side, going through the property of Karthikeyan and then through the property of certain others (with their permission). Commissioner has also reported that in the plaint B schedule a new fence was seen constructed. Commissioner has reported the disputed way as plaint C schedule. It is also reported by the Advocate Commissioner that he could not see any other means of access to the plaint A schedule and that at the point where the disputed way (plaint C schedule) joined plaint D schedule, the portion was seen closed down. 6. It is bearing in mind the above circumstance and also the fact that there was no other means of access (as Ext.P7, report of the Advocate Commissioner prima facie revealed) that the appellate court was not inclined to grant the stay applied for. 7. True that petitioners have a case of existence of alternative way and an application to appoint an Advocate Commissioner to ascertain that, is filed. I am not inclined to think, prima facie, at this stage that the Advocate Commissioner O.P(C).No.2334 of 2011 -: 6 :- who claims to have gained access to the plaint A schedule through the property of Karthikeyan and certain others (with their permission) could not see the existence of an alternative way to the plaint A schedule. Of course, it is open to the petitioners to prove in the course of trial that the first respondent has an alternative way and how that affected the claim of the first respondent. But, until then first respondent has to gain access to the plaint A schedule. In these circumstances I do not find reason to interfere with the order passed by the learned Sub Judge on I.A.No.134 of 2011. 8. C.M.A.No.1 of 2011 challenging the impugned order passed by the learned Munsiff is still pending consideration before the learned Sub Judge. It would have been appropriate that learned Sub Judge had disposed of the C.M appeal also along with I.A.No.134 of 2011 which did not happen. It is also unfortunate, to say the least that in spite of the judgment of this Court delivered on February 25 2011 directing early disposal of I.A.No.134 of 2011, that application was disposed of only on July 12, 2011. I make it clear that it is open to the petitioners to raise all their contentions before learned Sub Judge in C.M.A.No.1 of 2011 and that dismissal of I.A.No.134 of 2011 or observations or O.P(C).No.2334 of 2011 -: 7 :- finding contained in this judgment shall not in any way influence learned Sub Judge in the disposal of C.M.A.No.1 of 2011 on its merit. Learned Sub Judge shall make every endeavour to dispose of C.M.A.No.1 of 2011 as early as possible. 9. It is pointed out by learned counsel that in the impugned order, learned Sub Judge has directed disposal of the suit within three months and that the applications which petitioner has preferred for remission of the report, etc are pending consideration. I make it clear that the suit shall be disposed of only after giving both sides opportunity to adduce their evidence on the disputed questions. With the above directions and observations this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-