IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 OP(C).No. 1608 of 2011(O) AGAINST THE ORDER DATED 12.4.2011 IN I.A.NO.797 OF 2011 IN OS.6/2011 OF MUNSIFF'S COURT, TIRUR PETITIONERS 1. NEDUVANCHERRY HAMSA,S/O.KAMMAD, KALPAKANCHERRY AMSOM, THOZHANNUR DESOM, PO KARUKA, TIRUR TALUK. 2. NEDUVANCHERRY SIDHEEQ, S/O.HAMSA,KALPAKANCHERRY AMSOM, THOZHANNUR DESOM,PO KARUKA, TIRUR TALUK. BY SENIOR ADVOCATE SRI.T.KRISHNAN UNNI ADV. SRI.SAJU.S.A RESPONDENT: NEDUVANCHERRY KUNHAYISA @ AYISA, W/O.VELLATHOOR SHAMSUDHEEN, KALPAKANCHERRY AMSOM, THOZHANNUR DESOM, PO KARUKA, TIRUR TALUK 676 551. ADV. SRI.PRAVEEN K. JOY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.6/2011 OF MUNSIFF'S COURT, TIRUR DATED 3.1.2011. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.6/2011 OF MUNSIFF'S COURT, TIRUR DATED 25.2.2011. EXT.P3 TRUE COPY OF I.A.NO.14/2011 IN O.S.NO.6/2011 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 3.1.2011. EXT.P4 TRUE COPY OF THE COUNTER FILED BY THE DEFENDANTS IN I.A.NO.14/2011 IN O.S.NO.6/2011 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 28.1.2011. EXT.P5 TRUE COPY OF I.A.NO.15/2011 IN O.S.NO.6/2011 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 3.1.2011. EXT.P6 COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS IN I.A.NO.15/2011 IN O.S.NO.6/2011 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 29.1.2011. EXT.P7 TRUE COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER IN O.S.NO.6/2011, MUNSIFF'S COURT, TIRUR DATED 18.1.2011. EXT.P8 TRUE COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER IN O.S.NO.6 OF 2011, MUNSIFF'S COURT, TIRUR DATED 18.1.2011. EXT.P9 TRUE COPY OF DETAILED OBJECTIONS ON THE PLAN AND REPORT OF THE COMMISSIONER ON 28.1.2011. EXT.P10 TRUE COPY OF COMMON ORDER DATED 23.3.2011 IN I.A.NO.14/2011 AND I.A.NO.15/2011 IN O.S.NO.6/2011, MUNSIFF'S COURT, TIRUR. EXT.P11 TRUE COPY OF I.A.NO.797/2011 IN O.S.NO.6/2011, MUNSIFF'S COURT, TIRUR DATED 11.4.2011. EXT.P12 RUE COPY OF COUNTER FILED BY THE DEFENDANTS IN I.A.NO.797/2011 IN O.S.NO.6/2011 OF MUNSIFF'S COURT, TIRUR DATED 12.4.2011. EXT.P13 TRUE COPY OF THE ORDER OF THE COURT OF THE MUNSIFF OF TIRUR IN I.A.NO.797/2011 IN O.S.NO.6/2011 OF MUNSIFF'S COURT, TIRUR DATED 12.4.2011. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE DISCHARGE SUMMARY DATED 2.1.2011 OF AMRITA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM. EXT.R1(b) TRUE COPY OF THE CLINICAL SUMMARY DATED 27.11.2010 OF MALABAR INSTITUTE OF MEDICAL SCIENCE (MIMS). EXT.R1(c) TRUE COPY OF THE SCAN DATED 14.11.2010 OF KORAMBAYIL HOSPITAL AND DIGNOSTIC CENTRE. EXT.R1(d) TRUE COPY OF THE SURGICAL PATHOLOGY REPORT DATED 3.1.2011 OF AIMS. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1608 OF 2011 O ------------------------------------------------------ Dated this the 15th day of June, 2011 JUDGMENT The petitioners are the defendants in O.S.No.6 of 2011 on the file of the Court of the Munsiff of Tirur. The suit was filed by the respondent for permanent prohibitory injunction restraining the defendants from obstructing the user of the road marked as 'W' in the sketch produced along with the plaint. The respondent/plaintiff filed I.A.No.14 of 2011 for temporary injunction and I.A.No.15 of 2011 for interim mandatory injunction. Both these applications were considered and disposed of by the trial court by a common order dated 23.3.2011. The operative portion of the order reads as follows: “(1)I.A.15/2011 is allowed. (2) The respondents are directed by an order of interim mandatory injunction to restore the original position of the way on the northern side of petition schedule property through the respondents' property on its further north, to the northern road, by removing the O.P.(C) NO.1608 OF 2011 O :: 2 :: stones placed across its entrance to the respondents' property and by removing the other obstructions noted by the Advocate Commissioner in Ext.C1 and C2, within 15 days from the date of this order. (3) On failure, the petitioner shall be at liberty to get the Order executed through Court, in which event, the respondents shall be liable for the costs of such execution. (4) I.A.14/2011 is allowed to the effect that, after restoration of position of the way as directed in I.A.15/2011, the respondents are restrained by a temporary prohibitory injunction from causing further obstructions to the way referred therein. (5) The parties shall bear their respective costs.” 2. Against the order passed by the trial court in I.A.No.15 of 2011, the petitioner filed C.M.A.No.10 of 2011 and against the order in I.A.No.14 of 2011, the petitioner filed C.M.A.No.11 of 2011 on the file of the Court of the Subordinate Judge, Tirur. These appeals are pending. O.P.(C) NO.1608 OF 2011 O :: 3 :: 3. Meanwhile, I.A.No.797 of 2011 was filed by the plaintiff for police assistance for implementing the order in I.A.No.15 of 2011. The trial court, as per Ext.P13 order dated 12.4.2011, allowed that application. Ext.P13 order is under challenge in this Original Petition. 4. The Original Petition was admitted and the operation of Ext.P13 order was stayed for a period of one month. 5. The learned senior counsel appearing for the petitioner submitted that to protect the interests of both parties, it would be ideal if a direction is issued to the Sub Court to dispose of C.M.A.Nos.10 and 11 of 2011, keeping in abeyance the implementation of Ext.P13 order. It is submitted that the respondents in the C.M.Appeals have entered appearance and the C.M.Appeals are ripe for hearing. 6. Learned counsel appearing for the respondent submitted that because of the stay, the respondent is not in a position to take the car through the road in question. Learned counsel appearing for the petitioners submitted that there is every chance of the O.P.(C) NO.1608 OF 2011 O :: 4 :: C.M.Appeals being allowed and if the tapioca cultivation in the property is now destroyed for implementing the order passed by the court below, the petitioners would be put to great hardship. 7. Taking into account all the facts and circumstances of the case, I think it would be sufficient if a direction is issued to dispose of C.M.A.Nos.10 and 11 of 2011, pending before the Sub Court, Tirur. At the same time, it would also be just and proper to keep in abeyance the implementation of the order passed by the trial court in I.A.No.797 of 2011 till the disposal of the C.M.Appeals. Accordingly, the Original Petition is disposed of as follows: (a) The Court of the Subordinate Judge of Tirur shall dispose of C.M.A.Nos.10 and 11 of 2011 as expeditiously as possible and, at any rate, within a period of one month from today. It is submitted by the learned senior counsel appearing for the petitioners that the petitioners would not request for any adjournment before the Sub Court, Tirur under any circumstance. It is made clear that no prayer for O.P.(C) NO.1608 OF 2011 O :: 5 :: adjournment on behalf of the petitioners shall be granted by the Sub Court, Tirur. (b) Till the disposal of C.M.A.Nos.10 and 11 of 2011, the order dated 12.4.2011 in I.A.No.797 of 2011 in O.S.No.6 of 2011, Munsiff's Court, Tirur shall not be implemented. (K.T.SANKARAN) Judge ahz/