IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 WP(C).No. 9920 of 2009(O) OS.932/2008 OF PRINCIPAL MUNSIFF'S COURT,NEYYATTINKARA PETITIONER: --------------- R.SREEKUMAR, S/O.RAGHAVA PANIKKAR, AGED 45 YEARS, RESIDING AT K.M.G.BUILDING, KANJAMBALAM, THIRUVANANTHAPURAM. BY ADV. SRI.M.HARISHARMA RESPONDENT: --------------- S.MURUGAN, S/O. SUNDARESAN AGED 42 YEARS, RESIDING AT M.S.NIVAS, ARUMANUR, POOVAR.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 9920 OF 2009 O ------------------------------------------------------ Dated this the 1st April, 2009 JUDGMENT The petitioner filed O.S.No.932 of 2008, on the file of the Court of the Munsiff of Neyyattinkara, against the respondent for permanent prohibitory injunction. In that suit, I.A.No.5998 of 2008 was filed for temporary injunction. The trial court passed Ext.P2 order dated 7.11.2008, which reads as follows: “Heard both side. 2. A commission report has been received. The order granted is modified in the following way. 3. The defendants are restrained from forcibly evicting the plaintiff from the first floor of the building No.482. Regarding other areas, the plaintiff shall not do any act of interference with the possession of the defendant. 4. The IAs shall go with the suit.” 2. The petitioner has filed another suit as O.S.No.297 of 2008, on the file of the Sub Court, Neyyattinkara, against the respondent for declaration of title and for cancellation of a document executed in favour of the defendant. That suit is also pending. W.P.(C) NO. 9920 OF 2009 :: 2 :: 3. The respondent filed I.A.No.1820 of 2009 in O.S.No.932 of 2008 (Ext.P6) alleging that the writ petitioner unauthorisedly removed the locks placed on the shutters and door of Room No.479 situated in the ground floor and placed another set of locks. The prayer made in I.A.No.1820 of 2009 was to put the defendant in possession of Room No.479 with necessary police aid. The trial court passed Ext.P5 order dated 24.3.2009 allowing I.A.No.1820 of 2009. The defendant was permitted to open and gain possession of Room No.479 by breaking open the lock. The District Superintendent of Police, Neyyattinkara was directed to afford sufficient protection. Ext.P5 order in I.A.No.1820 of 2009 is under challenge in this Writ Petition. 4. Learned counsel for the petitioner submitted that no opportunity was afforded to the petitioner to file objections to I.A.No.1820 of 2009 and the court below hurriedly passed Ext.P5 order on the next day of filing the application. It is admitted that Ext.P2 order is in force now. Learned counsel for the petitioner submitted that against Ext.P2 order in I.A.No.5998 of 2008, the petitioner has filed C.M.A.No.8 of 2009 before the Sub Court, W.P.(C) NO. 9920 OF 2009 :: 3 :: Neyyattinkara and that CMA is pending. He submitted that to resolve the controversy in the matter, it is necessary to direct the Sub Court, Neyyattinkara to dispose of C.M.A.No.8 of 2009. 5. The relief prayed for in the Writ Petition is to quash Ext.P5 order in I.A.No.1820 of 2009 and to direct the trial court to consider that application along with the suit. It is true that the court below passed the order on the next day of the filing of the application. There is no case for the petitioner that he was not heard. But, his grievance is that he was not afforded a meaningful opportunity of being heard as opportunity was denied to him to file counter affidavit. Though technically speaking, the petitioner was not afforded an opportunity to file counter affidavit and, to that extent, the court below was not fully justified in disposing of the application on the next day itself, I do not propose to interfere with the order passed by the court below, since the court below has only ensured implementation of Ext.P2 order which is not stayed in C.M.A.No.8 of 2009. Even if an opportunity is granted to the petitioner, on the face of Ext.P2 order, he cannot raise any objection in granting the relief. Therefore, I do not think, it is proper to set aside Ext.P5 order. W.P.(C) NO. 9920 OF 2009 :: 4 :: 6. Learned counsel for the petitioner submitted that the petitioner was in possession of Room No.479 in the ground floor and that he has kept his articles there. It is also submitted that there is entrance to the first floor from Room No.479. To a query by the court, whether the petitioner has facility to enter into the first floor through the stair case, it is admitted by the counsel for the petitioner that the petitioner can enter into the first floor without entering into Room No.479. All the questions raised between the parties are to be decided in C.M.A.No.8 of 2009. Till then, Ext.P2 order is liable to be implemented. The court below has passed Ext.P5 order to implement Ext.P2 order and therefore the order cannot be faulted. At the same time, the court below may consider the request of the petitioner to remove any of his articles kept in Room No.479. If an application is filed in that behalf, the court below shall consider the same. With the above observations, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/