IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 OP(C).No. 3526 of 2011(O) ------------------------- CMA.8/2011 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: -------------------- - RAHMAN, S/O.VAZHAUYIL JAINUDEEN, THAZHEKKAD VILLAGE, TAZHEKKAD DESOM, MUKUNDAPURAM TALUK. BY ADVS. SRI. KRISHNAN UNNI, SENIOR ADVOCATE SRI.T.N.MANOJ RESPONDENT(S): ----------------------- 1. LEELA ,W/O.NARAYANAN PUTHUR THZHEKKAD VILLAGE, TAZHEKKAD DESOM, MUKUNDAPURAM TALUK. 2. RAMADEVAN,S/O.NARAYANAN PUTHUR HOUSE, THAZHEKKAD VILLAGE, TAZHEKKAD DESOM, MUKUNDAPURAM TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Scl. OP(C).No. 3526 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS: EXT.P1:- TRUE COPY OF THE PETITION IA 4066/2011 IN OS 1430/2010 EXT.P2:- TRUE COPY OF THE COMMISSION REPORT DATED 26/10/2010 EXT.P3:- TRUE COPY OF THE 2ND COMMISSION REPORT EXT.P4:- TRUE COPY OF THE ORDER DTD.12/1/2011 IN IA 4066/2011 OF MUNSIFF COURT IRINJALAKKUDA EXT.P5:- TRUE COPY OF PETITION IN IA 289/2011 IN CMA 8/2011 EXT.P6:- TRUE COPY OF THE OBJECTION TO IA 289/2011 EXT.P7:- TRUE COPY OF THE ORDER DTD./9/2/2011 IN IA 289/2011 IN CMA 8/11 EXT.P8:- TRUE COPY OF THE IA 683/2011 IN CMA 8/11 EXT.P9:- TRUE COPY OF THE ORDER DTD.15/6/2011 IN IA 683/2011. EXT.P10:- TRUE COPY OF THE PETITION IA 4197/2011 IN IA 683/2011 CMA 8/11 EXT.P11:- TRUE COPY OF THE ORDER DTD 7/9/2011 IN IA 4197/2011 IN CMA 8/2011. RESPONDENTS' EXHIBITS: NIL TRUE COPY PA TO JUDGE Scl. THOMAS P. JOSEPH, J. ---------------------------------------- O.P.(C) No. 3526 OF 2011 ------------------------------------------ Dated this the 10 th day of November, 2011. J U D G M E N T Plaintiff in O.S.No.1430 of 2010 of the court of learned Additional Munsiff, Irinjalakuda is the petitioner before me, challenging Exts. P9 and P11, orders. He filed the suit for a decree for prohibitory injunction to restrain the respondents/defendants causing obstruction to his using plaint B schedule, described in the plaint as a way originating from the Panchayat road on the south and leading to the house of petitioner through the property of respondents. Petitioner also filed IA No. 4066 of 2010 for an order of temporary injunction. Respondent denied the existence of plaint B schedule way. Learned Munsiff after hearing both sides and referring to the report and sketch (Ext. P2) submitted by the Advocate Commissioner reached a prima facie conclusion that plaint B schedule way is in existence and granted temporary injunction as prayed for based on the plea of petitioner that he has a right of easement by prescription over the said way. Respondents challenged that order before the learned Sub Judge, Irinjalakuda in CMA 8/2011 and moved Ext.P5 application for an order of injunction to restrain petitioner using plaint B schedule pathway. O.P.(C) No. 3526 OF 2011 2 Learned Sub Judge dismissed Ext.P5, application as per Ext. P7, order dated 9-2-2011 observing that it is illegal and unreasonable to grant temporary injunction at that stage of the proceedings. Thereafter respondents filed Ext.P8, application for stay of operation of order of injunction granted by the learned Munsiff. On that, learned Munsiff passed Ext.P9, order on 15-6-2011 that in view of filing of the appeal, it is highly necessary to stay the order of learned Munsiff until disposal of the CM Appeal. Petitioner, aggrieved by the said order, filed Ext. P10, application for review, claiming that Ext.P9 was passed without considering the objection of petitioner to Ext. P8 application for stay. Learned Sub Judge dismissed Ext.P10, application by Ext.P11 order observing that the said contention cannot stand since Ext. P9, order was passed after perusing the counter as well. Exts. P9 and P11, orders are under challenge. 2. Learned counsel for the petitioner contends that in view of Ext.P2, report and sketch, which do not reveal that petitioner has any alternative access to the plaint A schedule belonging to him and particularly since learned Sub Judge had refused to grant an order of injunction vide Ext. P7 O.P.(C) No. 3526 OF 2011 3 order, it was not appropriate that an order of stay was granted merely for the reason that the C.M. Appeal has been preferred. It is contended that learned Sub Judge has not taken into account either the objection preferred by the petitioner to Ext.P8, application or Ext.P2, report and sketch submitted by the Advocate Commissioner. Hence it is requested that Exts. P9 and P11 orders be set aside. It is also submitted by the learned counsel that immediately after Ext.P9 order dated 15-6-2011 respondent have closed down the B schedule way by constructing wall and shed and thus blocking access of petitioner through plaint B schedule. Hence petitioner has filed I A No. 3884 of 2011 before the learned Munsiffs for an order of mandatory injunction. Learned Munsiff is refusing to act on I.A No.3884 of 2011 for the reason that the CM appeal is pending. Learned counsel requested that learned Munsiff may be directed to dispose of IA No.3884 of 2011 as early as possible. 3. Learned counsel for the respondents while supporting Exts.P9 and P11 orders submitted that learned Sub Judge could be directed to dispose of the CM appeal as early as possible. According to the learned O.P.(C) No. 3526 OF 2011 4 counsel, Ext.P2 report and sketch are prepared without notice to the respondents. Learned counsel reiterated the contention raised in the trial court no such way as described in plaint B schedule is in existence. 4. This court on 3-11-2011, after hearing both sides passed an order that Ext.P9, order of stay granted by the learned Sub Judge in CM Appeal on 15-6-2011 will stand stayed for a period of 10 days from 03-11- 2011. The CM appeal is pending consideration before the learned sub Judge. In the circumstances, I do not consider it necessary or appropriate to go into controversial issues involved in the matter since that might affect the decision of learned Sub Judge in the CM Appeal. The appropriate course is to direct that the order passed by this court on 3-11-2011 staying the operation of Ext.P9, order dated 15-6-2011 of the learned Sub Judge will remain in force until the CM Appeal is disposed of. 5. So far as I A No.3884 of 2011 filed by petitioner before the learned Munsiff is concerned, since Ext.P9, order passed by the learned Sub Judge has already been stayed by this court and that stay will continue until O.P.(C) No. 3526 OF 2011 5 the CM Appeal is disposed of, in the absence of any other legal impediments it is open to the learned Munsiff to proceed with IA No. 3880 of 2011 and pass orders after hearing both sides and having regard to the facts and circumstances of the case. Learned Sub Judge shall also dispose of CM A No. 8 of 2011 as early as possible. 6. Resultantly, this Original Petition is disposed of as follows: 1. It is directed that the order passed by this court on 03/11/2011 staying the operation of Ext.P9, order dated 15/6/2011 passed by the learned Sub Judge (staying the operation of the order of learned Munsiff granting temporary injunction) will remain in force until the CM Appeal is disposed of. 2. The learned Sub Judge, Iringalakuda is directed to dispose of CMA No. 8 of 2011 as early as possible at any rate within one month from the date of receipt of the copy of this judgment. O.P.(C) No. 3526 OF 2011 6 3. It is made clear that in the light of the order of stay granted by this court as above stated, it is open to the learned Munsiff to proceed with I A No. 3884 of 2011 if there is no other legal impediment in doing so and dispose of the same after hearing the parties and having regard to the facts and circumstances of the case. THOMAS P. JOSEPH, JUDGE. Scl.