IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 31066 of 2008(W) --------------------------------------- CMA.83/2008 of D.C & SESSIONS COURT,TRIVANDRUM OS.1743/2006 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): ------------------------- 1. S.JAYAKUMAR, AGED 39 YEARS, S/O.SEKHARA PILLAI, MEMBER, MALAPPARIKONAM WARD, SREEKARYAM GRAMA PANCHAYAT, POWDIKONAM P.O., THIRUVANANTHAPURAM. 2. V.GOPAKUMAR, AGED 40 YEARS, S/O.VISWAN PILLAI, MEMBER, KANJIKKAL WARD, SREEKARYAM GRAMA PANCHAYAT, POWDIKONAM P.O., THIRUVANANTHAPURAM. 3. S.SURESHKUMAR, AGED 32 YEARS, PRESIDENT, GANDHIJI POWRA SAMITHI, RESIDING AT PANAVILA VEEDU GANDHIPURAM,POWDIKONAM P.O., THIRUVANANTHAPURAM. BY ADVS.MR.J.HARIKUMAR MR.HARIKUMAR.S. RESPONDENT(S): -------------------------- STANLEY, S/O.ISHAYYAN, MELEPUTHEN VEEDU, NAVUKKOTTUKONAM, NOW RESIDING AT CHITTOORKONATHU MELE PUTHEN VEEDU, GANDHIPURAM, POWDIKONAM P.O. THIRUVANANTHAPURAM. R1 BY ADV. MR.K.B.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 31066/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT DTD. 1.11.06 IN OS. NO.1743/06 OF THE 2ND ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM. P2:- COPY OF THE ORDER DTD. 4.12.06 IN IA. NO.10277/06 IN OS. 1743/06 OF THE 2ND ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM. P3:- COPY OF THE COMMISSION REPORT IN IA. 10278/06 DTD. 16.12.06 IN OS. 1743/06. P4:- COPY OF THE IA. 9865/07 DTD. 27.11.07 IN OS. NO.1743/06. P5:- COPY OF THE OBJECTIONS DTD. 1.3.08 IN IA. 9865/07 DTD. 27.11.07 IN OS. 1743/06. P6:- COPY OF THE COMMISSION REPORT DTD. 24.8.07 IN IA. 4046/07 IN OS. 1743/06. P7;- COPY OF THE ORDER DTD. 8.8.08 IN IA. 9865/07 IN OS. NO.1743/06 OF THE 2ND ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM. P8:- COPY OF THE ORDER DTD. 5.9.08 IN CMA. NO.83/08 OF THE DISTRICT COURT, THIRUVANANTHAPURAM. P9:- COPY OF THE LETTER DTD. 5.10.08 SUBMITTED BEFORE THE ADVOCATE COMMISSIONER BY THE SECRETARY OF SREEKARYAM GRAMA PANCHAYAT. P10:- COPY OF THE ORDER DT. 10.10.08 ISSUED TO THE RESPONDENT BY THE SPECIAL GRADE SECRETARY OF SREEKARYAM GRAMA PANCHAYAT. TRUE COPY P.A. TO JUDGE tss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.31066 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th August, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records leading to Exhibit P7 order of the 2nd Additional Munsiff's Court, Thiruvananthapuram in I.A.No.9865 of 2007 in O.S.No.1743 of 2006 and Exhibit P8 order of the District Court, Thiruvananthapuram in C.M.A.No.83 of 2008 and to set aside the same. 2. To grant such other reliefs as are deemed fit and proper in the interests of justice as well in the facts and circumstances of this case. 2. Petitioners are the defendants in O.S.No.1743 of 2006 on the file of the 2nd Additional Munsiff Court, Thiruvananthapuram. The above suit is for a decree of perpetual prohibitory injunction and the respondent is the plaintiff. An ad interim injunction was passed in favour of the plaintiff on his application restraining the defendants from trespassing upon the plaint property and interfering with his possession and enjoyment, and from demolishing the western boundary of the plaint property. Subsequently, the plaintiff moved another application for interim mandatory injunction canvassing a case that the southern boundary of the plaint property had been W.P.C.No.31066/08 - 2 - demolished by the defendants. An Advocate Commissioner had conducted a local inspection over the property before filing of the above application, a copy of which is produced as P4. Subsequent to P4, the Commissioner visited the property and filed another report before the court. After hearing both sides, the learned Munsiff, came to the conclusion that there is no material to conclude that the demolition of the wall had been carried out by the defendants; but, as it was shown prima facie demolition had occurred after the filing of the suit, interim mandatory injunction was granted permitting the plaintiff to put up the demolished wall at the place where it was situate earlier. P7 is the copy of that order. Correctness and legality of P7 order was challenged in appeal by the petitioners/defendants. The learned District Judge, after hearing both sides, dismissed that appeal. Propriety and correctness of the judgment rendered by the learned District Judge, a copy of which is produced as P8, 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. Learned counsel for the petitioners/defendants submitted that under the guise of P7 order as upheld by P8 judgment, the plaintiff is making preparation to annex portions of a Panchayat road situate on the southern side of his W.P.C.No.31066/08 - 3 - property. Two of the petitioners, it is submitted, are panchayat members and as such they are answerable to the people in the locality. It is further submitted that the local authority had also initiated action restraining the plaintiff from putting up any construction, without obtaining any permit, beside the Panchayat road. P7 order passed by the learned Munsiff as upheld by P8 judgment, in the circumstances involved, cannot be sustained is the submission of the learned counsel. On the other hand, learned counsel for the respondent/plaintiff submitted that while disposing of the appeal preferred by the petitioners as P8 judgment, the learned District Judge has categorically stated that the Panchayat is free to take whatever action found necessary, if any violation is made by the plaintiff in putting up the boundary wall. Learned counsel further submits that notice was issued by the Panchayat, but it was challenged before the Tribunal constituted under the Panchayat Raj Act and the action taken by the Panchayat has been quashed. Counsel would further submit that if at all the parties to the suit and the Panchayat have any complaint regarding putting up of the boundary wall, the Panchayat is free to take appropriate action, and the wall will be put up only under the supervision of the Commissioner appointed by the court. Having regard to the W.P.C.No.31066/08 - 4 - submissions made and the facts and circumstances presented, I find in the present Writ Petition, I need not go into nor advert to the rival case presented by the parties or the merit of their respective case. Suffice to state that the learned Munsiff and also the learned District Judge have concurrently found that the plaintiff is entitled to get an order of interim mandatory injunction to put up the boundary wall which admittedly was demolished after the institution of the suit and that too after passing of an interim order of injunction by the court. When that be so, in exercise of the visitorial jurisdiction, this court cannot be expected to examine merit of the materials to test the validity of the orders passed by the inferior courts. After perusing P7 order and P8 judgment, I do not find any illegality or impropriety warranting interference by the supervisory jurisdiction vested by this court. In the event of any violation regarding putting up of the boundary wall, the local authority is free to take appropriate action under the Panchayat Raj Act and the Rules. Subject to the above observation, the Writ Petition is closed. srd S.S. SATHEESACHANDRAN, JUDGE