IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 WP(C).No. 21327 of 2009(O) --------------------------------------- (AS.NO.49/2008 OF SUB COURT,ATTINGAL) .................... PETITIONERS: --------------------- 1. REGHU, S/O.SADANANDAN, AGED 50 YEARS, R.G.BHAVAN (GARUDANVILAKOM) KOONTHALLOOR DESOM, KIZHUVILAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. GEETHA, D/O.RAMAKRISHNAN, DO. DO. BY ADV. MR.MILLU DANDAPANI. RESPONDENTS: ------------------------ 1. SHAHUL HAMEED, AGED 70 YEARS, GARUDANVILAKOM VEEDU, KOONTHALLOOR DESOM, KOONTHALLOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. HABUSA BEEVI, W/O.SHAHUL HAMEED, DO. DO. R1 & R2 BY ADVS.MR.J.JAYAKUMAR, MR.S.JIJI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No. 21327 OF 2009 -------------------------- Dated this the 25th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P3. ii) Issue a writ of certiorari or any other writ, order or direction quashing Ext.P3 order in I.A No. 926/2008 in A.S No.49/2008. iii) Issue a writ of mandamus or any other writ or direction directing the learned Sub Judge, Attingal to consider I.A No. 926/2008 in A.S No.49/2008 afresh and pass appropriate orders W.P.(C).No. 21237 OF 2009 Page numbers considering the entire case put forward by the petitioners. iv) Award costs to the petitioners in the proceedings. 2. Petitioners are the plaintiffs in O.S No.430 of 2001 on the file of the Munsiff Court, Attingal. Suit was one for injunction, both prohibitory and mandatory, and the respondents are the defendants in the suit. The defendants resisting the suit claim raised a counter claim for mandatory injunction to cut and remove the coconut tree standing in the property of the plaintiffs which is alleged to be leaning towards their residential building under their occupation. Suit claim after trial was found against but upholding counter claim a decree was passed. Petitioners/ plaintiffs preferred an appeal as A.S No.49/2008 before the Sub Court, Attingal. Petitioners moved W.P.(C).No. 21237 OF 2009 Page numbers an application for staying the operation of the mandatory injunction upholding the counter claim of the defendants / respondents. That application was disallowed by the learned Sub Judge vide Ext.P3 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. It is submitted, when a commission was taken out by the plaintiffs, the commissioner deputed, after examining the properties, made an observation that a coconut tree standing in the property of the plaintiffs was standing in a dangerous condition causing threat to the occupation of the defendants in the nearby building. Pursuant thereto, the defendants filed the written statement raising the counter claim for cutting and removing that coconut tree. The learned counsel for the petitioners W.P.(C).No. 21237 OF 2009 Page numbers submits that in his commission application, the details furnished of the tree was not a point sought for consideration and after filing of the written statement, no commission was also taken by the defendants to substantiate their case that the tree caused danger to their occupation. Whatever that be, after trial, the suit claim of the plaintiffs was found against and the counter claim upheld by the court. Perusing the judgment rendered by the court below in the suit, I find, its merit has to be considered in appeal by the learned Sub Judge. However to examine the interim relief sought for during the pendency of the suit if it is seen that sufficient materials are not available it is proper and appropriate to collect such materials for the purpose of meting out justice to both parties. The learned counsel for the petitioners submitted that the coconut tree which is directed to be cut and removed does not cause any threat, and further, to secure the tree W.P.(C).No. 21237 OF 2009 Page numbers it is tied with iron rope. The learned counsel also submits that a net was previously provided, and the petitioners will take steps to provide a new net, if it is not there, to prevent falling of nuts, cudjens etc. over the building of the respondents till the disposal of the appeal. 4. For disposal of the application moved by the petitioners in the appeal, it appears necessary to determine whether the coconut tree is causing any threat to the defendants. The court below is directed to depute an advocate commissioner on the application moved by the appellants to determine whether the tree cause any threat to the occupation of the defendants in the building in their property. After getting such a report, the court below is directed to pass appropriate orders in I.A No.926/2008, and till then the execution proceedings in the decree granted in respect of the counter claim shall be W.P.(C).No. 21237 OF 2009 Page numbers kept in abeyance. 5. The court below shall pass orders in I.A No.926/2008 within a period of four months, and the petitioners to take steps for appointment of a commission filing an application within three weeks from the date of receipt of a copy of this judgment. 6. Hand over a copy to the counsel on both sides and send a copy to the court concerned. Writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv