IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 34640 of 2008(W) -------------------------- CMA.49/2008 of SUB COURT,KOTTARAKKARA OS.503/2008 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER(S): --------------- SURESH KUMAR, S/O. NAGAPPAN PILLAI, SURESH BHAVANAM, NEELESWARAM.P.O, NADUVATHOOR, KOTTARAKKARA TALUK. BY ADV. SRI.P.HARIDAS RESPONDENT(S): --------------- PADMAKUMARY, W/O. SASIDHARAN PILLAI, JAYASREE MANDIRAM, NEELESWARAM.P.O, NEELESWARAM VILLAGE, KOTTARAKKARA TALUK. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.RAJAN VELLOTH FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 SRI.BENOJ C AUGUSTIN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.34640/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.503/08 DATED 2.10.08 OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXT.P2: COPY OF THE REPORT DATED 7.10.08 OF THE ADVOCATE COMMISSION IN O.S.NO.503/08 OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXT.P3: COPY OF THE OBJECTION DATED 10.10.08 FILED BY THE RESPONDENT IN O.S.NO.503/08 OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXT.P4: COPY OF THE ORDER DATED 15.10.08 IN I.A.NO.2786/08 IN O.S.NO.503/08 OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXT.P5: COPY OF THE APPLICATION I.A.NO.1617/08 FILED BY THE PETITIONER IN CMA.49/08 OF THE SUB COURT, KOTTARAKKARA. EXT.P6: COPY OF THE APPLICATION DATED 20.11.08 FILED BY THE RESPONDENT FOR POLICE PROTECTION IN O.S.NO.503/08 OF THE MUNSIFF'S COURT, KOTTARAKKARA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.34640 OF 2008 () ----------------------------------- Dated this the 25th day of February, 2010 J U D G M E N T Petitioner is the plaintiff in O.S.No.503 of 2007 on the file of the Munsiff Court, Kottarakkara. Suit is for declaration of easement and for injunction, and the respondent is the defendant. Alleging that the respondent/defendant is making attempts to obstruct the free flow of air and light to his property, by constructing a compound wall beside her property, which is described as 'B' schedule, the petitioner/plaintiff filed the suit seeking the reliefs of declaration of easement and injunction. With the suit, petitioner/plaintiff had also moved an application for interim injunction as identical to the reliefs sought in the suit. That application was resisted by the respondent/defendant filing objection. The learned Munsiff after considering the application, dismissed it vide Ext.P4 order. Petitioner/plaintiff preferred an appeal against Ext.P4 order, which numbered as C.M.A.No.49 of 2008, is pending consideration before the Sub WPC.34640/2008 2 Court, Kottarakkara. Meanwhile, the respondent/defendant had moved an application (Ext.P6) before the Munsiff Court, Kottarakkara, seeking orders from the court for rendering police assistance to put up a boundary wall beside her property. At that stage, petitioner filed the present writ petition seeking direction that the trial court be restricted from entertaining Ext.P6 application and pass orders thereof till disposal of his appeal, and also a direction for an expeditious disposal of his appeal by the Sub Court. 2. Notice given, the respondent has entered appearance. I heard the counsel on both sides. The learned counsel for the petitioner submitted that Ext.P6 application has been filed by the respondent/defendant on the basis of some observations made in Ext.P4 order that she has every right to put up a compound wall within her property. The entitlement of the respondent as to whether she can put up a boundary with the aid of the court has not been canvassed before the court so far and on the basis of the observations made by the court in Ext.P4 application, the court is incompetent to entertain Ext.P6 application or pass any order thereof is the submission WPC.34640/2008 3 of the counsel. Whatever that be, I find that Ext.P6 application has not been considered by the court below on its merit so far. Petitioner can file objection to Ext.P6 application, and needless to point out, the court below has to consider the legal principles applicable in entertaining and disposing such an application. At this stage, this Court need not look into the merit of Ext.P6 application moved by the respondent/defendant. It is submitted that respondent had already entered appearance in the C.M.A. pending before the Sub Court, Kottarakkara. Having regard to the facts and circumstances involved, I direct the learned Sub Judge to hear and dispose of C.M.A.No.49 of 2008 within three months from the date of receipt/production of a copy of this judgment. Writ petition is accordingly disposed of. Send a copy of the judgment to the Munsiff Court and Sub Court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp WPC.34640/2008 4