IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 WP(C).No. 2144 of 2010(O) ------------------------- (O.S.No.89/2007 of MUNSIFF'S COURT, THODUPUZHA) PETITIONER: --------------- JOSEPH, S/O.ULAHANNAN CHEMBARATHYKALAPURAYIL, MUTHALAKODAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) RESPONDENTS: --------------- 1. PAILY, S/O.ULAHANNAN, CHEMBARATHYKALAPURAYIL, MUTHALAKODAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. THOMMAN PAILY @ REJU, S/O.PAILY, DO. DO. ADV. SRI.K.K.CHANDRAN PILLAI FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2144 of 2010(O) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1 : Common order dtd.23/7/2007 in I.A.Nos.426 & 488 of 2007 in O.S.No.89/2007, Munsiff's Court, Thodupuzha. EXHIBIT P2 : Common judgment in C.M.A.Nos.39&40 of 2007 dtd.30/7/2009 District Court, Thodupuzha. EXHIBIT P3 : Judgment dtd.20/11/2009 in W.P.(C)No.26789/2009. EXHIBIT P4 : Affidavit & petition dtd.12/1/2010 EXHIBIT P5 : Affidavit, petition & the medical certificate dtd.18/1/2010. EXHIBIT P6 : Affidavit & petition dtd.12/1/2010 by the petitioner. RESPONDENTS' EXHIBITS:- Nil True copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.2144 of 2010 --------------------------------------- Dated this 24th day of May, 2010 JUDGMENT Claiming title and possession of plaint A schedule and right of easement by way of prescription over plaint B schedule way, petitioner filed O.S.No.89 of 2007 in the court of learned Munsiff, Thodupuzha. On the application of petitioner learned Munsiff issued an ex parte interim order of injunction restraining respondents from interfering with plaint B schedule property. The advocate commissioner who inspected the properties submitted report as to the state of affairs of plaint A and B schedule. Thereafter there was an alleged obstruction to plaint B schedule at the instance of respondent, according to the petitioner in violation of the interim order of injunction. For removal of that obstruction petitioner filed I.A.No.488 of 2007 and obtained a favourable order. Respondents challenged that order as well as order of prohibitory injunction in C.M.Appeal No.39 of 2007. Learned District Judge while confirming the order of injunction granted I.A.No.426 of 2007, set aside the order on I.A.No.488 of 2007 and directed learned Munsiff to postpone the relief of mandatory injunction to the final disposal of the suit preferably along with I.A.No.487 of W.P.C.No.2144 of 2010 : 2 : 2007. Petitioner, feeling aggrieved by that part of the judgment to the extent learned District Judge interfered with the order on I.A.No.488 of 2007 filed W.P.C.No.26789 of 2009 in this court. This court vide judgment dated 20-11-2009 set aside the judgment of learned District Judge to the extent it concerned I.A.No.488 of 2007 and directed learned District Judge to decide the relief prayed for in that application on merit. Pursuant to that direction, learned District Judge considered the appeal and dismissed the same in confirmation of the order passed by learned Munsiff on I.A.No.488 of 2007. Thereafter petitioner filed Exts.P4 to P6 applications. Ext.P4 is to depute an advocate commissioner for local inspection and to report on the matters asked for therein. Ext.P5 is an application to remove case from the list accompanied by a medical certificate and Ext.P6 is an application to direct respondents to implement the order on I.A.No.488 of 2007, ie. the order of mandatory injunction. Apprehending that learned Munsiff might proceed with trial of the suit before disposing of Exts.P4 to P6. Petitioner/plaintiff has preferred this writ petition praying that appropriate direction may be issued to the learned Munsiff to pass final orders on Exts.P4 to P6 before the case is included in the list for trial. Learned counsel for petitioner contends that while disposing of W.P.C.No.26789 of 2009 this court has specifically referred to the relevant aspects, highhanded act of the respondents W.P.C.No.2144 of 2010 : 3 : in flouting the order of injunction passed by learned Munsiff and obstructing plaint B schedule way which is the only means of access to the petitioner to the plaint A schedule. According to the learned counsel if without enforcing the order on I.A.No.488 of 2007 learned Munsiff proceeds to dispose of the suit, that in effect would negate the relief granted to the petitioner on I.A.No.488 of 2007. Learned counsel for respondent No.2 (to whom it is admitted, respondent No.1 has transferred the property pending suit) would submit that petitioner has other alternative access to the plaint A schedule and non implementation of the order on I.A.No.488 of 2007 until disposal of the suit would not in any way prejudice or affect the petitioner. It is also contended that going by the materials on record petitioner is not entitled to get any relief in respect of plaint B schedule way which can be revealed in the trial of the suit. 2. I am not at the question in this proceeding whether petitioner has any right of access to plaint A schedule through plaint B schedule as contended by respondents which is to be adjudicated in the suit. Indisputably there was an order of temporary injunction against respondents causing obstruction to the plaint B schedule reported by the advocate commissioner. From the reports at various stages it is seen that there was obstruction caused to the plaint B schedule after the interim order W.P.C.No.2144 of 2010 : 4 : of injunction was issued. This court while disposing of W.P.C.No.26789 of 2009 (though for the purpose of deciding the writ petition challenging judgment of the learned District Judge in C.M.Appeal.No.39 of 2007) has observed that the interim order of prohibitory injunction so far it remained in force had to be obeyed by the parties concerned and that violation of the order of injunction is not only a matter which is affected the right of petitioner but, affecting the majesty of court and the confidence of the public in the process of the court. In the circumstances the contention that petitioner ultimately would not be entitled to get relief does not require to be considered at this stage. 3. As it now stands, the order of mandatory injunction on I.A.No.488 of 2007 has become final and it is to be complied. When there is an order of mandatory injunction on I.A.No.488 of 2007 directing removal of obstruction in plaint B schedule and that order has been confirmed by the learned District Judge in C.M.Appeal.No.39 of 2007. Learned Munsiff has to enforce that order as requested for in Ext.P6 application. If trial of the suit is conducted before doing so, it would have the effect of negating the relief granted to the petitioner on I.A.No.488 of 2007. After the order of mandatory injunction on I.A.No.488 of 2007 is enforced it will be open to the learned Munsiff to post the case for trial without loosing further time if pre-trial steps are over. W.P.C.No.2144 of 2010 : 5 : This writ petition is allowed. The learned Munsiff, Thodupuzha is directed to dispose of Exts.P4 to P6 applications before the case is posted for trial in the list. (THOMAS P JOSEPH, JUDGE) Sbna/-