IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).NO. 2179 OF 2011(O) -------------------------------------- I.A. NO.1171 OF 2011 IN AS.29/2011 OF SUB COURT, TIRUR PETITIONERS-RESPONDENTS: --------------------------------------------- 1. KIZHAKKECHALIYIL KAMMUKUTTY @ K.C. KUNHUTTY, S/O. MUHAMMEDKUTTY, MELMURI AMSOM, KARAKKAD DESOM, P.O. KADAMPUZHA, TIRUR TALUK. 2. KUNHAMMED, S/O. MUHAMMADKUTTY, -DO- THROUGH POWER HOLDER WIFE SULAIKA 3. JUBAIRIYA, W/O. KIZHAKKECHALIYIL ABDURAHIMAN, POOVACHIRA, P.O. RANDATHANI, TIRUR TALUK. 4. AYISHA, W/O. THEKKEPPATU KUNAHAMMEDKUTTY, BEACH ROAD, PARAPPANANGADI AMSOM DESOM, TIRURANGADI TALUK. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT-PETITIONER: --------------------------------------- KARINKAPPARA CHOORAKKUZHIYIL SAIDALU S/O. AHAMMEDKUTTY HAJI, KURUMBATHUR AMSOM, CHELOOR DESOM, P.O. PUNNATHALA, TIRUR TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.201 OF 2007 OF THE MUNSIFF COURT, TIRUR. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT BY THE FIRST DEFENDANT IN O.S. NO.201 OF 2007. EXHIBIT P3 TRUE COPY OF THE PLAN AND REPORT AND SKETCH. EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR INJUNCTION IN I.A. NO.1374 OF 2010 IN O.S. NO.201 OF 2007. EXHIBIT P5 TRUE COPY OF THE APPLICATION FOR INJUNCTION DATED 14.1.2011. EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR REMITTING THE COMMISSIONER'S REPORT. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 17.2.2011 IN I.A. NO.86 OF 2011 IN O.S. NO.201 OF 2007. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 17.2.2011 IN I.A. NO.87 OF 20O11 IN O.S. NO.201 OF 2007. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 10.3.2011 IN ISSUE NO.1 IN O.S. NO.201 OF 2007. EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN O.S. NO.201 OF 2007 DATED 17.3.2011 OF THE MUNSIFF'S COURT, TIRUR. EXHIBIT P11 TRUE COPY OF THE MEMORANDUM OF APPEAL IN A.S. NO.29 OF 2011. EXHIBIT P12 TRUE COPY OF I.A. NO.1171 OF 2011 IN A.S. NO.29 OF 2011 IN A.S. NO.2011. EXHIBIT P13 TRUE COPY OF THE APPLICATION I.A. NO.1164 OF 2011 FOR DEPUTING A COMMISSION FOR INSPECTION AND FILING A REPORT. EXHIBIT P14 TRUE COPY OF THE COMMISSIONER'S REPORT AND SKETCH. EXHIBIT P15 TRUE COPY OF THE ORDER DATED 22.06.2011 IN A.S. NO.29 OF 2011 OF THE SUB COURT, TIRUR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2179 of 2011 -------------------------------------- Dated this the 8th day of July, 2011. JUDGMENT Petitioners are defendants in O.S.No.201 of 2007 of the court of learned Munsiff, Tirur. That is a suit for fixation of boundary or in the alternative, for recovery of possession if it is found that petitioners are in possession of the disputed property. As the learned counsel submits, about three years after the institution of the suit respondent filed I.A.No.1374 of 2010 for temporary injunction which was dismissed by the learned Munsiff. Undaunted, respondent filed I.A.No.86 of 2011 in the same court again for an order of temporary injunction. That the learned Munsiff dismissed as per Ext.P7, order dated February 17, 2011 referring to the dismissal of the earlier application, failure of respondent to take out a commission along with the suit to identify the properties and based on what the Advocate Commissioner later appointed has reported. 2. It is submitted by learned counsel that learned Munsiff had observed while disposing of the application for injunction that respondent does not appear to be specific about the property in respect of which he has made the claim. While so, the dispute regarding valuation of plaint was carried in appeal by the respondent in A.S.No.29 of 2011 before learned Sub Judge, Tirur. In that appeal, respondent filed I.A.No.1171 of 2011, again for an order of OP(C) No.2179/2011 2 injunction. That application was allowed as per Ext.P15, order dated June 22, 2011. Learned counsel submits that petitioners were infact not heard on that application and that the request of petitioners to grant some time was rejected and learned Sub Judge passed Ext.P15, order notwithstanding dismissal of earlier applications and the report of the Advocate Commissioner. Learned counsel submits that in view of Ext.P15, order petitioners are not able to carry out agricultural activities even in the property in their possession. 3. It is seen from Ext.P15, order that learned Sub Judge has referred to the construction of a new road through the disputed property recently. Learned Sub Judge observed that respondent has made out a prima facie case and accordingly directed parties to maintain status quo as reported by the Advocate Commissioner in his report dated June 14, 2011 until disposal of the appeal. In view of that order, I.A.No.1171 of 2011 was closed. 4. Learned counsel submits that as per Ext.P15, order there is a direction to maintain status quo as reported by the Advocate Commissioner in his report dated June 14, 2011. Learned counsel submits that petitioners are prepared to make an application before the learned Sub Judge for clarification of the order and permit them to carry out agricultural activities and ply vehicles. It is open to the petitioners to file application as provided under law and if any such application is filed, learned Sub Judge has to dispose of the same and pass appropriate orders as provided under law. I am not expressing any opinion as to how that application is to be entertained or disposed of. 5. But, having regard to the circumstances stated and considering the OP(C) No.2179/2011 3 fact that whatever be the reason thereof the impugned order was passed without hearing the petitioners, it is only just and proper that the proceeding before the learned Sub Judge is expedited. Hence learned Sub Judge has to dispose of A.S.No.29 of 2011 as early as possible having regard to the grievance of petitioners which I have referred to above and which according to the learned counsel, is revealed by the records. Resultantly this Original Petition is disposed of directing learned Sub Judge, Tirur to dispose of A.S.No.29 of 2011 as early as possible taking into account the grievance and apprehension of petitioners. THOMAS P.JOSEPH, Judge. cks