IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 OP(C).NO. 2996 OF 2011(O) --------------------------------------- OS.462/2010 OF ADDL.MUNSIFF COURT, KANNUR .................... PETITIONER: -------------------- V.P.KUNHAMINA,D/O.V.P.MUSTHAFA HAJI, AGED 48 YEARS,'KHURAISH',NEAR GARUDA MANGALYA SAHAYI MARRIAGE BUREAU,TALAP,KANNUR670002 BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S): ------------------------ 1. DR.SHANTHA MADHAVAN,W/O.DR.MADHAVAN, AGED 80 YEARS,'THE ANCHOR',KANNUR-1,AMSOM DESOM, KANNUR 670 002. 2. THE KANNUR MUNICIPALITY,REP.BY ITS SECRETARY,KANNUR 670 002. ADV. SRI.N.NAGARESH FOR R1 SRI.K.BABU FOR R1 SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE FOR R2 SRI.A.S.SAJUSH PAUL FOR R2 SRI.THOMAS JAMES MUNDACKAL FOR R2 SRI.BOBBY THOMAS FOR R2 SRI.TONY THOMAS (INCHIPARAMBIL) FOR R2 SMT.S.AMBILY FOR R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2996 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORIGINAL PLAINT IN O.S. NO.462 OF 2010 FILED BY THE FIRST RESPONDENT BEFORE THE ADDITIONAL MUNSIFF'S COURT, KANNUR670002 EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE SECOND RESPONDENT HEREIN IN O.S. NO.462 OF 2010 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KANNUR. EXHIBIT P3 TRUE COPY OF THE AMENDED PLAINT IN O.S. NO.462 OF 2010 OF THE ADDITIONAL MUNSIFF'S COURT, KANNUR ALONG WITH THE SUMMONS THEREON, RECEIVED BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER HEREIN IN O.S. NO.462 OF 2010 DATED 31.8.2011. EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION AS I.A. NO.2804 OF 2011 FOR DIRECTING THE FIRST DEFENDANT TO PRODUCE FILE NO.E3/14591/2009 AND FILE NO.34/BA91/07 AND TO GIVE ORAL EVIDENCE. EXHIBIT P6 TRUE COPY OF THE ORDER OF THE ADDITIONAL MUNSIFF'S COURT, KANNUR DATED 5.9.2011 IN O.S. 462 OF 2010 AS COPIED BY ADVOCATE M.DEEPAK, COUNSEL FOR PETITIONER BEFORE THE TRIAL COURT. EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT SWORN BY ADVOCATE M.DEEPAK COUNSEL FOR THE PETITIONER HEREIN BEFORE THE TRIAL COURT. RESPONDENT(S)' EXHIBITS: EXHIBIT R1(a) TRUE PHOTOCOPY OF THE COMPLAINT DATED 30.12.2008 FILED BY THE FIRST RESPONDENT BEFORE THE SECOND RESPONDENT. EXHIBIT R1(b) TRUE PHOTOCOPY OF THE REMINDER DATED 13.7.2009. EXHIBIT R1(c) TRUE PHOTOCOPY OF THE APPLICATION DATED 1.8.2009 SUBMITTED BY THE PUBLIC INFORMATION OFFICER. EXHIBIT R1(d) TRUE PHOTOCOPY OF THE REPLY DATED 29.8.2009 TO THE PUBLIC INFORMATION OFFICER. EXHIBIT R1(e) TRUE PHOTOCOPY OF THE APPLICATION DATED 26.9.2009 TO THE PUBLIC INFORMATION OFFICER. EXHIBIT R1(f) TRUE PHOTOCOPY OF THE REPLY DATED 24.10.2009 ISSUED BY THE PUBLIC INFORMATION OFFICER. EXHIBIT R1(g) TRUE PHOTOCOPY OF THE APPLICATION DATED 26.11.2009 ISSUED BY THE PUBLIC INFORMATION OFFICER. EXHIBIT R1(h) TRUE PHOTOCOPY OF THE REPLY GIVEN BY THE PUBLIC INFORMATION OFFICER DATED 26.12.2009. EXHIBIT R1(i) TRUE PHOTOCOPY OF THE LAWYER NOTICE DATED 21.01.2010 ISSUED TO THE SECOND RESPONDENT. EXHIBIT R1(j) TRUE PHOTOCOPY OF THE POSTAL ACKNOWLEDGMENT. EXHIBIT R1(k) TRUE PHOTOCOPY OF THE REPORT DATED 18.11.2010 FILED BY THE COMMISSIONER IN O.S. NO.462 OF 2010. EXHIBIT R1(l) TRUE PHOTOCOPY OF THE PLAN SUBMITTED BY THE COMMISSIONER IN O.S. NO.462 OF 2010. EXHIBIT R1(m) TRUE PHOTOCOPY OF THE NOTICE DATED 14.01.2011 ISSUED BY THE SECOND RESPONDENT TO THE FIRST RESPONDENT. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2996 of 2011 ==================================== Dated this the 23rd day of September, 2011 J U D G M E N T Petitioner is the additional second defendant in O.S. No.462 of 2010 of the court of learned Additional Munsiff, Kannur. First respondent filed a suit against the second respondent for a decree for mandatory injunction to direct the second respondent to remove the corrugated tin sheet put up over the northern compound wall of the suit property over which first respondent claimed title and possession. According to the first respondent, the Municipality has already passed an order directing removal of the corrugated tin sheet. Second respondent pleaded in the suit that the suit is bad for non-joinder of necessary parties. In view of that contention petitioner was impleaded as additional second defendant in the suit. Petitioner filed written statement on 31.08.2011 and thereafter case was posted for trial in the list. First respondent filed I.A. No.2804 of 2011 to direct the second respondent to produce certain documents, that application was allowed and the documents were accordingly produced. I am told that the first respondent did not adduce oral evidence but examined the Secretary of second respondent on the side of the O.P(C) No.2996 of 2011 -: 2 :- first respondent as P.W.1 on 03.09.2011. Since chief examination was not over, the witness was called upon to appear on 05.09.2011. On 05.09.2011 learned Munsiff passed Ext.P6, order which reads as follows: “Municipal Secretary present. Examined as P.W.1. Exhibits X1 to X5 were marked. Bound over for executing Ext.X4 order. Call on 26.09.11 for reporting execution”. The said order is under challenge. 2. Learned counsel for petitioner contends that petitioner was not aware of the existence of any such order, has already applied for getting copy of that order under the Right to Information Act and on getting copy of the order intends to prefer appeal challenging that order. It is contended by learned counsel that when P.W.1 was in the box, first respondent put a question whether P.W.1 is prepared to execute the order passed by the second respondent and the witness answered in the affirmative. It is thereon that learned Munsiff passed the impugned order. It is contended by learned counsel that in the course of the suit O.P(C) No.2996 of 2011 -: 3 :- where a mandatory injunction is prayed for, learned Munsiff was not correct in passing the impugned order which has the result of granting decree in the suit. 3. Learned counsel for first respondent contended that second respondent has passed an order for removal of the corrugated tin sheet, that order remains unexecuted even now and PW1 expressed willingness to execute the said order. Hence there is nothing illegal in the learned Munsiff passing the impugned order. Same stand is taken by the learned Standing counsel for second respondent as well. 4. I am not going in this proceeding to the question whether the Municipality was correct in passing the order referred to in Ext.P6. That is a matter which the affected party may take up before the appropriate authority if he is otherwise entitled to that course . 5. Now I am concerned with Ext.P6, order. The question is whether in a suit where first respondent claimed a decree for mandatory injunction, even on the answer given by P.W.1 learned Munsiff ought to have passed Ext.P6, order. Having heard both sides and gone through the order passed, I am inclined to answer the question in the negative. For, if learned Munsiff O.P(C) No.2996 of 2011 -: 4 :- directed P.W.1 to execute the order in the course of suit it might amount to prejudging of the whole issue and granting the final relief sought for in the suit. Hence Ext.P6, order is liable to be set aside. But I make it clear that I am not making any observation as to whether it is open to the Secretary of the Municipality to execute the order that the Municipality is said to have passed. That is entirely a different matter which is not to be dealt with and is not dealt with also in this proceeding. Subject to the observations made above Ext.P6, order is set aside. Learned Munsiff is directed to expedite trial and disposal of the suit as provided under law. THOMAS P. JOSEPH, JUDGE. vsv