IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 WP(C).No. 13751 of 2007(K) -------------------------- CMA.70/2006 of DISTRICT COURT,THODUPUZHA OS.214/2006 of MUNSIFF COURT, THODUPUZHA .................... PETITIONERS: ---------------- 1. M.J.VARGHESE, S/O.M.V.JOHN, MATTACKAL HOUSE, MUTTAM, THODUPUZHA. 2. SRI.P.V.SIVAN, PERUMBATTUPURAYIDATHIL (PAZHAYAVEEDU) HOUSE, MUTTOM, THODUPUZHA. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENTS: ------------------- 1. DILEEP KUMAR, S/O KUNJIRAMAN, NANGELIL HOUSE, KUTTOM, THODUPUZHA. 2. SMT.MINI, W/O DILEEP KUMAR, NANGELIL HOUSE, MUTTOM, THODUPUZHA. BY ADV. SRI.T.I.ABDUL SALAM FOR R1 &2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4 /6 /2008 , THE COURT ON 04/06/2008 DELIVERED THE FOLLOWING: ORDER ON I.A.NO.15856/2007 IN W.P.(C) 13751/2007 4.6.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ APPENDIX Ext.P1:- True photo copy of the affidavit filed by the petitioner dated 15/07.2006 Ext.P2:- True photo copy of the counter affidavit filed by the respondents dated 24.07.2006 Ext.P3:- True photo copy of the commission report dated 25.07.2006. Ext.P4:- True photo copy of the order dated 11.08.2006. Ext.P5:- True photo copy of the CMA 70/06 filed by the respondent before the District Court dated 13.10.2006. Ext.P6:- True photo copy of the order dated 30.03.2007 /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 13751 OF 2007 =========================== Dated this the 4th day of June, 2008 JUDGMENT Petitioners are the plaintiffs in O.S.214/2006 on the file of Munsiff Court, Thodupuzha. In the suit an application for temporary injunction restraining respondents from removing earth from plaint C schedule property was sought contending that if the earth is removed, it will cause loss of lateral support to the plaint A and B schedule properties. Under Ext.P4 order an order of temporary injunction was granted under Order XXXIX Rule 1 of Code of Civil Procedure. Respondents challenged the order before District Court, Thodupuzha in C.M.A No.70/2006. The learned District Judge confirmed the order of temporary injunction but with modification. When the learned Munsiff under Ext.P4 order restrained respondents from excavating soil to a width of one meter on the western and eastern portion of the plaint C W.P.(C) 13751/2007 2 schedule property, District Judge reduced the width to one feet on the western and eastern extreme portion of the plaint schedule property. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioners and respondents were heard. 3. Learned counsel appearing for petitioners argued that if respondents are to be allowed to remove earth limiting the order of injunction to a width of one feet alone and ultimately in the suit it is to be found that respondents are not entitled to remove the earth and cause lateral support to plaint A and B schedule properties, petitioners will be without any remedy. It was also pointed out that District Judge did not give any reason for reducing the width and in such circumstance, Ext.P6 order modifying Ext.P4 is to be quashed, to that extent. Learned counsel also pointed out that an order of stay was granted at the time of admitting the Writ Petition and it is subsisting throughout. Learned counsel for respondents submitted that even if Ext.P6 order is to be W.P.(C) 13751/2007 3 interfered a direction may be issued to the trial court to dispose of the suit as expeditiously as possible. 4. Prima facie finding of the trial court that removal of earth from plaint C schedule property will cause loss of lateral support to plaint A and B schedule property was upheld by the learned District Judge in Ext.P6 order. But the order was modified without giving any reason. Relevant portion of Ext.P6 order reads:- “Having considered the extent of C schedule property I feel that leaving one metre width on either side of the C schedule property ordered by the learned Munsiff is a little bit high. In my view one feet on either side of the schedule property will be sufficient to prevent soil erosion from A and B schedule properties. Accordingly, I modify the impugned order.” W.P.(C) 13751/2007 4 As rightly pointed out by the learned counsel appearing for petitioners, there is absolutely no reason for modifying the order. The order could have been modified if the learned District Judge has relied on any other evidence to reduce the width. In the absence of any data enabling first appellate court to hold that removal of earth from plaint C schedule property only to the extent of a width of one feet alone on the east and west will cause lateral support, the order could have been sustained. In the absence of any such finding, Ext.P6 order to the extent of modifying Ext.P4 is not sustainable. The order to that extent is set aside and Ext.P4 order is restored. Learned Munsiff is directed to dispose the suit as expeditiously as possible, untrammelled by any observations in Ext.P4 and P6 order. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006