IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 22681 of 2010() ------------------------- OS.223/2010 of ADDITIONAL MUNSIFF COURT, KOLLAM .................... PETITIONER(S): --------------- Z.ANTONY, AGED 56, S/O.ZAVIOR, UDAYAGIRI, KUREEPUZHA CHERRY, THRIKADAVOOR VILLAGE, KOLLAM. BY ADV. SRI.R.KISHORE SRI.G.HARIPRASAD RESPONDENT(S): --------------- 1. KERALA STATE REPRESENTED BY DISTRICT COLLECTOR, KOLLAM - 13. 2. KOLLAM CORPORATION, CORPORATION OFFICE, KOLLAM - 1 REPRESENTED BY ITS SECRETARY. 3. THE EXECUTIVE ENGINEER, ROADS SUB DIVISION, PUBLIC WORKS DEPARTMENT, BEACH ROAD, KOLLAM-1. 4. SADIQUE, S/O.LEKSHMANAN, DIRECTOR, LEKSHMANAN & CO, AKKAVILA ERAVIPURAM VILLAGE, KOLLAM TALUK. PIN - 691 011. R2 - BY STANDING COUNSEL SHRI M.K.CHANDRAMOHAN DAS R1 & R3 BY GOVERNMENT PLEADER SHRI P.R.JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22681 of 2010 -------------------------------------- Dated this the 21st day of July, 2010. JUDGMENT Plaintiff in O.S.No.223 of 2010 of the court of learned Munsiff, Kollam is the petitioner before me challenging Ext.P4, order suo motu vacating the order of interim injunction granted in favour of petitioner. According to the petitioner, respondents are attempting to make constructions or put up fencing causing obstruction to the pathway and vehicle parking in front of his commercial building being used by himself and the public at large and that according to the petitioner is illegal and affected his right of enjoyment of the building. Petitioner filed I.A. No.1482 of 2010 seeking an order of temporary injunction but impleading only respondent Nos.3 and 4, the Executive Engineer, PWD and the agent of respondent No.4 who is entrusted with the work. Notice was served on respondent Nos.3 and 4 and they were given opportunity to prefer their objection to the application. Since there was no objection preferred by them, learned Munsiff on 31.03.2010 issued an order of temporary injunction (against respondent Nos.3 and 4 herein) until further orders and posted the case on 25.06.2010. Learned Munsiff passed Ext.P4, order on 13.07.2010 stating that “By considering the fact that the notice has not been served on the G.P. and further considering the public interest in the issue, the order granted ex-parte on 31.03.2010 is vacated ” and the application was posted for objection and hearing on 26.07.2010. Learned counsel for petitioner contends that Order XXXIX Rule WP(C) No.22681/2010 2 4 of the Code of Civil Procedure (for short, “the Code”) could be invoked to vacate the order of interim injunction only on an application of the defendant but none of respondents preferred any such application. It is submitted by learned counsel that it at all inherent power of court under Section 151 of the Code could be invoked there was no sufficient reason to vacate the order of injunction. It is pointed out by learned counsel that there is a factual mistake in the order under challenge in that, notice on I.A.No.1482 of 2010 was served on respondent No.3 and 4 herein and what happened is that there was no communication from the office of respondent No.3 to the Government Pleader which was no reason to vacate the interim injunction even invoking inherent power. So far as public interest is concerned, learned counsel contends that impugned construction in front of shopping complex would affect public interest since that place is used by public at large including students who are studying in a college being run in the said building belonging. I have heard learned standing counsel for respondent No.2 and Government Pleader appearing for respondent Nos.1 and 3 in this Writ Petition. 2. Though learned standing counsel for respondent No.2 had raised a preliminary objection regarding maintainability of the Writ Petition since according to him the order under challenge is appealable under Order XLIII Rule 1(r) of the Code vide order dated 19.07.2010 I directed the petition to be registered in view of the contention raised by learned counsel for petitioner that it is not on any application moved by any of the respondents that the order of interim injunction was vacated by the learned Munsiff and since even if WP(C) No.22681/2010 3 appellate remedy is available, this Court can interfere with the order of a subordinate court in exercise of its supervisory jurisdiction. But I am unable to accept the contention that in the absence of an application from any of the respondents, learned Munsiff could not have vacated the interim order. If not Order XXXIX Rule 4 of the Code, Section 151 of the Code empowers the court to vacate the interim order of injunction if the court finds that it should not remain in force. [See Munnu Lal v. Nagar Mahapalika and others - AIR 1978 Allahabad 11]. 3. Question is whether the order under challenge suffers any illegality or perversity so that this Court should interfere in exercise of its supervisory jurisdiction. It is not disputed that proposed work was commissioned by respondent No.2, the Corporation of Kollam though work was assigned to done by respondent No.3, Executive Engineer, PWD. Respondent Nos.1 and 2 are not made parties in I.A.No.1482. Since work was commissioned by respondent No.2, it definitely had a say in the matter of grant of temporary injunction. I am not at the question whether learned Government Pleader was given notice from the office of respondent No.3. I am concerned with the question whether respondent No.2 was given notice . As I stated, that was not done. Learned Munsiff has stated that in public interest order of injunction should not stand. I am unable to say that that order is illegal or perverse so that this Court should exercise its supervisory power. WP(C) No.22681/2010 4 4. Learned counsel states that until learned Munsiff finally disposes I.A.No.1482 of 2010 there may be a direction to the respondents maintain status quo. Learned standing counsel for respondent No.2 points out that this Court in an earlier proceeding had directed respondent No.2 to carry out the work at the earliest. In exercise of supervisory power, and considering the factual situation I do not think that such an order is warranted. But I make it clear that it is open to the petitioner to request learned Munsiff to expedite disposal of I.A.No.1482 of 2010. If petitioner is so advised it is open to him to implead respondent Nos.1 and 2 or such of them as is found necessary and as he is advised as parties in I.A.No.1482 of 2010. Learned Munsiff shall dispose of I.A.No.1482 of 2010 as provided under law untrammelled by any observation in this judgment or that this Court was not inclined to order status quo as requested by petitioner. Writ Petition is closed with the above observations. THOMAS P.JOSEPH, Judge. cks