IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WP(C).No. 15944 of 2008(W) --------------------------------------- PETITIONER: ------------------ ABDUL SHUKKUR, AGED 42 YEARS, S/O. MOHAMMED ISMAIL SETTU, KADAVIL HOUSE, V.P. THURUTH, METHALA VILLAGE,KODUNGALLUR TALUK. BY ADV. SRI.BIMAL K.NATH SRI.S.JAMAL SRI.E.M.SUNIL KUMAR SMT.SMITHA DIVAKARAN SRI.SREEVALSAN.V SMT.SHINI.M.K. RESPONDENTS: ----------------------- 1. STATE OF KERALA REP. BY ITS SECRETARY, DEPARTMENT OF HOME, THIRUVANANTHAPURAM. 2. THE SUB INSPECTOR OF POLICE, KODUNGALLOOR. 3. SULEKHA, W/O.MOHAMMED ISMAIL SETTU, KADAVIL HOUSE, V.P. THURUTH, METHALA VILLAGE KODUNGALLUR TALUK. 4. NEJIMUNNEESA, D/O.MOHAMMED ISMAIL SETTU, KADAVIL HOUSE, V.P. THURUTH, METHALA VILLAGE, KODUNGALLUR TALUK. 5. ABDUL SATHAR, S/O.MOHAMMED ISMAIL SETTU, KADAVIL HOUSE, V.P. THURUTH, METHALA VILLAGE, KODUNGALLUR TALUK. SR. GOVERNMENT PLEADER SRI.BENJAMIN PAUL FOR R1, R2 ADV. SRI.P.N.RAMAKRISHNAN NAIR FOR R3 & R5 ADV. SRI.P.VISWANATHAN FOR R3 & R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).15944/2008-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT. EXT.P2: COPY OF THE I.A. NO.1403/2006. EXT.P3: COPY OF THE ORDER IN I.A. NO.1403/2006. EXT.P4: COPY OF THE ORDER IN C.M.A. NO.12/2007 OF ADDL. SUB COURT, IRINJALAKUDA. EXT.P5: COPY OF THE DIRECTION ISSUED TO THE 2ND RESPONDENT. EXT.P6: COPY OF THE COMPLAINT. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE NOTICE ISSUED BY THE MUNISFF'S COURT, KODUNGALLOOR. EXT.R5(b): COPY OF I.A. NO.636 OF 2007 FILED IN O.S. NO.704 OF 2006, ON THE FILE OF THE MUNSIFF'S COURT, KODUNGALLOOR. EXT.R5(c): COPY OF I.A. NO.637 OF 2007 FILED IN O.S. NO.704 OF 2006, ON THE FILE OF THE MINSIFF'S COURT, KODUNGALLOOR. EXT.R5(d): COPY OF THE PROCEEDINGS IN THE ADALATH. EXT.R5(e): COPY OF THE WRITTEN STATEMENT FILED IN O.S. NO.704 OF 2006, ON THE FILE OF THE MUNSIFF'S COURT, KODUNGALLOOR. // TRUE COPY // P.S. TO JUDGE Rs/ K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 15944 OF 2008 ============================ DATED THIS THE 2ND DAY OF SEPTEMBER 2008 JUDGMENT Balakrishnan Nair,J. The petitioner claims ownership and the possession of 5.03 cents of land in Survey No.1183/1 of Methala Village. The petitioner is residing in the building in that property. Respondents 3 to 5 are respectively his mother, sister and brother. They were also allowed to stay there. While so, they started causing obstruction to the residence of the petitioner. In the above background, the petitioner filed Ext.P1 suit before the Munsiff Court, Kodungallur seeking the following reliefs: a) That a decree may be passed declaring that the plaintiff is the exclusive owner of the house situated in the plaint schedule property and that no one other than the plaintiff has any right over the plaint schedule property and the house situated therein, W.P.(C)NO. 15944/2008 -2- b) A mandatory injunction may be passed against the defendants 2 and 3 directing them to vacate the house situated in the plaint schedule property, c) Permanent prohibitory injunction may be passed against the defendants 2 and 3 restraining them from entering into the plaint schedule property or causing any obstruction to the plaintiff in enjoying the plaint schedule property, d) such other reliefs as this Hon'ble court may deem fit and proper.” In the said suit, he moved an interlocutory application. The prayer in the I.A. was to issue an interim order restraining the respondents from obstructing the residence of the petitioner in the scheduled property. The said prayer was granted as per Ext.P3. The petitioner submits when the respondents in the I.A. did not obey that order and caused obstruction to the petitioner, he again moved the Munsiff Court and the said court addressed the police as per Ext.P5 to render necessary assistance to the petitioner for the implementation of Ext.P3 interim order. He W.P.(C)NO. 15944/2008 -3- points out in the meantime an appeal was attempted by the respondents in the I.A. against Ext.P3 before the Sub Court, Irinjalakuda which was dismissed by Ext.P4 order. 2. Pursuant to Ext.P5 direction, the petitioner filed Ext.P6 before the Sub Inspector of Police seeking necessary assistance as directed by the Munsiff Court. The police party under the leadership of the Assistant Sub Inspector, came to the house on 25-2-2007 but the building was closed on that day. The police informed those residing in the neighbourhood to tell the party respondents to come to the police station next day. The petitioner submits, the police did not take any further action to render assistance to him. In the above background the petitioner filed this writ petition seeking appropriate reliefs. 3. The present incumbent holding the post of Sub Inspector of Police, Kodungallur has filed a statement in which it is stated that he did not receive any petition from the petitioner and therefore, no action was taken. Respondents 3 and 5 have filed a counter affidavit stating that the disputed property was purchased by the petitioner from the 4th respondent. She got it W.P.(C)NO. 15944/2008 -4- under a Will executed by the father of the petitioner and of respondents 4 and 5. According to respondents 3 to 5, the residential building stands not in the property purchased by the petitioner from the 4th respondent, but in the item of property allotted to the 3rd respondent under the Will. The said property has been purchased by the 5th respondent. The said respondents submit that the appeal filed by them was dismissed observing that the said respondents can move the Munsiff Court itself for vacating or varying the interim order granted by it. The order in question is an ad interim ex parte order. Suppressing these material facts, the writ petition is filed, it is pointed out. 4. The petitioner has filed a reply affidavit to the statement filed by the 2nd respondent. He has stated that pursuant to Ext.P6, the then Sub Inspector of Police has deputed the Assistant Sub Inspector of Police to render assistance to the petitioner. So, the submission of the present incumbent holding the post of Sub Inspector of Police, Kodungallur is incorrect and ill-conceived. 5. As long as the order of the Munsiff Court is there, the W.P.(C)NO. 15944/2008 -5- police is bound to obey that order and to render assistance to the petitioner as prayed for by him. The stand taken by the 2nd respondent is plainly untenable. We express our unhappiness over the manner in which the second respondent has dealt with the order of the Munsiff Court, Ext.P5. But it is clarified that this direction will not in any way affect the contentions of respondents 3 to 5, which they have already raised in Ext.R5(b) and R5(c). Needless to say, if Ext.P3 is varied or modified, the direction to grant protection to implement Ext.P5 issued by us to the police, will also stand varied or vacated. The writ petition is disposed of as above. K. BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI JUDGE ks.