IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 CRP.No. 799 of 2008() --------------------- AGAINST THE ORDER DATED 07/10/2008 IN IA 2128/04 IN IA 862/08 IN OS.224/2008 of MUNSIFF COURT, CHITTUR .................... REVN. PETITIONER/PETITIONER/DEFENDANT: ------------------------------------------ CHANDRASEKHARAN S/O.SWAMYNATHAN, KOZHIPARA, VADAKARAPATHY VILLAGE CHITTUR TALUK, PALAKKAD. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------- R.ANTHONISWAMY S/O.RAYAPPAN, RAYAPAMANIYAM VEEDU, KOZHIPARA, VADAKARAPATHY VILLAGE CHITTUR TALUK, PALAKKAD. ADV. SRI.D.KRISHNA PRASAD FOR R1 SRI.D.NARENDRANATH FOR R1 SRI.M.HARISHARMA FOR R1 SMT.O.K.SANTHA FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2486 OF 2008 IN CRP NO.799 OF 2008 CLOSED. 4.11.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.799 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 4th November, 2009 ORDER The defendant in O.S.No.224 of 2008 on the file of the Munsiff Court, Chittur has filed this revision. The revision is directed against the order dismissing his petition filed to review the order passed in an interlocutory application for injunction, I.A.No.862 of 2008, by the plaintiff/respondent in the revision. The above suit was filed by the respondent seeking a decree of injunction and also recovery of possession. In the suit, plaintiff moved the above application (I.A.No.862 of 2008) seeking interim injunction against the defendant. Injunction sought was to restrain the defendant from causing any obstruction in refencing the existing thorn fence and also in repairing the existing compound wall. So far as the refencing of the existing thorn fence, the defendant submitted that he has no objection. To that extent, the injunction petition was allowed, restraining the defendant from causing any obstruction to the plaintiff in refencing the existing thorn fence under the supervision of an advocate commissioner. When the commissioner visited the spot to supervise the refencing, some obstruction was caused by the CRP No.799/08 - 2 - defendant and, thereupon, plaintiff moved for seeking police aid to complete the refencing. At that stage, the petitioner/defendant moved an application, I.A.No.2128 of 2008, for reviewing the order passed in I.A.No.862 of 2008 allowing refencing of the existing thorn fence. The review petition was opposed by the plaintiff, and, after hearing both sides, the learned Munsiff dismissed that petition. Correctness and propriety of that order is challenged in the revision. 2. I heard the counsel on both sides. At the time of hearing, learned counsel for the defendant submitted that defendant has no objection in refencing of the existing thorn fence on the western side of the petition schedule item No.3 property, but, in many portions of that boundary, there is no fence at all. Suit has been filed for recovery of B schedule property apart from seeking a decree of injunction, submits the counsel. So much so, without measuring and identification of the property, during the pendency of the suit putting up of a thorn fence solely on the basis of the order of injunction may work out grave injustice. Though there is an order of injunction on the basis of consent made by the defendant and further, the review petition filed by the petitioner stands dismissed, I find some force in the submission made by the counsel for the petitioner/defendant. Suit CRP No.799/08 - 3 - is pending and among other reliefs, recovery of possession is also sought for. There is also no material at this stage that all along the western boundary side of petition schedule item No.3 property a thorn fence is in existence, the repair of which without obstruction from the defendant under the supervision of the commissioner can be proceeded with in compliance of the order under I.A.No.862 of 2008. Learned counsel for the respondent has handed over to me a copy of the report prepared by the advocate commissioner, which, contains the rough sketch as to the property and the area where the existing thorn fence has to be refenced. It is seen that the B schedule property sought to be recovered is situate to the west of the existing fence. When that be the case, if the same commissioner is deputed excluding B schedule as shown in the plaint, the fence can be put up in compliance with the injunction order already passed, no prejudice or injury will be caused to the defendant, if the refencing is done as shown in the rough sketch under the supervision of the advocate commissioner. The question with respect to the recovery of B schedule and other disputed questions involved in the suit can be decided after adjudication. Measuring of the property as desired by the defendant sought for in the review petition can be considered CRP No.799/08 - 4 - after compliance of the injunction order with respect to the refencing of the existing thorn fence on the western side of the petition schedule item No.3 as shown in the rough sketch prepared by the advocate commissioner on 21.5.2008. Subject to the above clarification, the revision is disposed. srd S.S. SATHEESACHANDRAN, JUDGE