IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 33917 of 2009(O) -------------------------- OS.445/2009 of MUNSIFF COURT, THALIPARAMBA CMA.33/2009 of SUB COURT, PAYYANNUR .................... PETITIONER: --------------- K.GOVINDAN, S/O.THEEYANCHERI KUNHAMBU NAMBIAR, ELECTRICIAN, 48 YEARS, NEW NADUVIL AMSOM, NADUVIL DESOM, NADUVIL P.O., KANNUR DISTRICT. BY ADV. MR.O.V.MANIPRASAD RESPONDENTS: --------------- 1. K.P.UNNIKRISHNAN, S/O.LATE V.KUNHIRAMAN NAYANAR, BUSINESS, 38 YEARS, KOZHUKKAL POLLELIDATHIL HOUSE, NEW NADUVIL AMSOM, NADUVIL DESOM, NADUVIL P.O., KANNUR DISTRICT. 2. K.P.CHANDRALEKHA, W/O.M.M.VISWANATHAN, HOUSE WIFE, 36 YEARS, KOZHUKKAL POLLELIDATHIL HOUSE, NEW NADUVIL AMSOM, NADUVIL DESOM, NADUVIL P.O., KANNUR DISTRICT. 3. M.M.VISWANATHAN, S/O.K.P.NARAYANAN NAMBIAR, EMPLOYED ABROAD, 44 YEARS, MANJORI MANIKKOTH HOUSE, NEW NADUVIL AMSOM, NADUVIL DESOM, NADUVIL P.O., KANNUR DISTRICT. ADV. MR.C.P.PEETHAMBARAN FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33917 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PLAINT IN O.S.NO.445/2009 ON THE FILE OF THE MUNSIFF COURT, THALIPARAMBA. EXT.P2: AFFIDAVIT IN SUPPORT OF I.A.NO.3561/2009 IN O.S.NO.445/2009 ON THE FILE OF THE MUNSIFF COURT, THALIPARAMBA. EXT.P3: WRITTEN STATEMENT FILED BY THE PETITIONER ON 20.10.2009. EXT.P4: COUNTER FILED BY THE PETITIONER IN I.A.NO.3561/2009. EXT.P5: COMMISSION REPORT AND SKETCH. EXT.P6: APPLICATION SUBMITTED BY THE PLAINTIFF TO AMEND THE PLAINT AS I.A.NO.3761/2009. EXT.P6(a): AFFIDAVIT AND PETITION I.A.NO.3561/2009 IN O.S.NO.445/2009. EXT.P7: ORDER DATED 27.10.2009 IN I.A.NO.3561/2009 IN O.S.NO.445/2009. EXT.P8: APPEAL MEMORANDUM IN C.M.A.NO.33/2009 ON THE FILE OF THE SUBORDINATE JUDGES COURT, PAYYANNUR. EXT.P9: ORDER DATED 16.11.2009 IN C.M.A.NO.33/2009 BEFORE THE SUB COURT, PAYYANNUR. RESPONDENTS EXHIBITS: NIL ............. // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33917 of 2009 - O --------------------------------- Dated this the 10th day of December, 2009 J U D G M E N T Petitioner is the defendant in O.S.No.445 of 2009 on the file of the Munsiff Court, Thaliparamba. Respondents are the plaintiffs. The above suit has been filed by the respondents seeking a declaration of their right of prescriptive easement over 'C' schedule road and for injunction, both prohibitory and mandatory. With the suit, respondents/plaintiffs moved an application for an interim mandatory injunction directing the petitioner/defendant to restore the 'C' schedule road which is alleged to have been tampered with causing obstruction to the respondents/plaintiffs in taking vehicles through that road. Petitioner/defendant filed objections to that application. An advocate commissioner deputed by the court after conducting local inspection, prepared a report and also a rough sketch with respect to the matters relevant for disposing of the interlocutory application moved by the plaintiff for interim mandatory injunction. Learned Munsiff after hearing both sides allowed the W.P.(C).No.33917 of 2009 - O 2 application of the respondents/plaintiffs vide Ext.P7 order by which the petitioner/defendant was directed to restore the earlier position of the plaint 'C' schedule road within one week and in default respondents/plaintiffs were granted liberty to restore the road at their expense in the presence of an advocate commissioner. Challenge against Ext.P7 order by way of an appeal before the Sub Court, Payyannur by the petitioner/defendant was turned down by the learned Sub Judge confirming Ext.P7 order vide Ext.P9 judgment. Propriety and correctness of Ext.P7 order passed by the learned Munsiff and Ext.P9 rendered by the learned Sub Judge is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. 3. From the submissions made by the counsel on both sides with reference to Ext.P7 order passed by the learned Munsiff and Ext.P9 by the learned Sub Judge and other exhibits tendered with the writ petition, I find the disputes emerging from the rival case set up by the parties can be resolved only in a trial W.P.(C).No.33917 of 2009 - O 3 after affording reasonable opportunity to both sides to lead evidence in support of their respective case. For the time being it is seen from the advocate commissioner's report, a copy of which is exhibited as Ext.P5, that there is a road having a width of 2.45 meters running from north-south direction leading to A and B schedule properties comprising the residential buildings of the plaintiffs. The property of the petitioner/defendant is situate on the western side of that roadway at a lower level from the road. The commissioner has reported that close to the property of the petitioner/defendant comprising his residential building, some damages over the road had been done by removal of the soil to an area covering 60 cm in width, 2.5 meters in length and the pit is having different depth varying from 13cm to 28cm. Though the petitioner/defendant would contend that despite such damage noticed to the road there is sufficient width for the respondents/plaintiffs to take their vehicle through the road both the courts below have found that the respondents/plaintiffs have made out a case by the materials placed including the features evidenced by Ext.P5 commission report that they are entitled to W.P.(C).No.33917 of 2009 - O 4 have an interim mandatory injunction as sought for. From the circumstances presented, I find the order passed by the learned Munsiff which had been approved by the learned Sub Judge cannot at all be found fault with. However, during the hearing, a suggestion was made by the learned counsel for the respondents/plaintiffs that they are prepared to carryout the repair works over the damaged portion of the road without making any material alteration or change to the road so that it can be used for plying their vehicles through that road. Without prejudice to the right of the petitioner/defendant to agitate his contentions raised in his written statement disputing the suit claim, according to the counsel for the petitioner, the defendant has no objection in according permission to the respondents/plaintiffs to carry out the work as suggested. In the light of the submission made as above, which appear to be a workable and practicable suggestion at this stage, and more so, as the issues arising in the suit can be resolved only after trial, I find the interim order of mandatory injunction can be modified with a direction permitting the respondents/plaintiffs to carry out W.P.(C).No.33917 of 2009 - O 5 the repair of the road at the damaged portion under the supervision of an advocate commissioner deputed by the court. The expenses for carrying out the repair and also the batta payable to the advocate commissioner shall be met by the respondents/plaintiffs. There will be a prohibitory order of injunction against the petitioner/defendant from tampering with 'C' schedule road until disposal of the suit. Permission granted to the respondents/plaintiffs to carry out the repair work in the damaged portion of the road in modification of the interim order of mandatory injunction is without prejudice to the right of the petitioner to canvass whatever challenges available to him under law as against the claim raised in the suit. The learned Munsiff shall dispose the suit, as expeditiously as possible, untrammelled by any of the observations made in its Ext.P7 order or Ext.P9 order of the learned Sub Judge and also of this judgment. S.S.SATHEESACHANDRAN, JUDGE. bkn/-