IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 20112 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 562/2009 IN CMA.9/2009 of PRL.SUB COURT,IRINJALAKUDA OS.371/2008 of MUNSIFF COURT, KODUNGALLUR (IA 1351/2008) .................... PETITIONER(S): ------------------------- PAUL, AGED 33 YEARS, S/O.POTTEPARAMBIL THOMAS, THANISSERY DESOM, KAKKULISSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR.SAIBY JOSE KIDANGOOR RESPONDENT(S): ---------------------------- 1. VARGHESE, AGED 65 YEARS, S/O. KACHAPPILLY SOURIAR, THANISSERY DESOM, KAKKULISSERY VILLAGE, MUKUNDAPURAM TALUK. 2. MARY, AGED 58 YEARS, W/O. KACHAPPILLY VARGHESE, THANISSERY DESOM, KAKKULISSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. MR.BABU KARUKAPADAT, MR.K.A.NOUSHAD, MR.P.G.PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20112/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMMISSION REPORT. P2: COPY OF THE ORDER IN I.A. 790/08 & 1351/08 IN O.S.NO.371/08 DTD. 6/12/08 OF MUNSIFF COURT, KODUNGALLUR. P3: COPY OF THE ORDER IN I.A.562/09 IN C M A 9/09 DTD. 6/07/09 OF PRINCIPAL SUBORDINATE COURT, IRINJALAKUDA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S. TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.20112 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 27th July, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records leading upto Exts.P2 and P3 orders and set aside the same. 2. To issue such other appropriate orders or directions as this Honourable Court deems fit in the nature and circumstance of the case. 2. Petitioner is the plaintiff in O.S.No.371/08 on the file of the Munsiff Court, Kodungallur. Suit is one for perpetual prohibitory injunction and the respondents are the defendants. In the suit, the petitioner moved an application for interim injunction to restrain the defendants from trespassing upon his property and interfere with his peaceful possession and enjoyment over that property. The defendants, on appearance, filed another application for interim mandatory injunction contending that a water canal going through the property of the petitioner has been enjoyed by him and now the suit has been laid after filling up that canal with quarry powder. By way of the interim mandatory injunction the respondents sought for removal of the quarry powder from the canal. An Advocate W.P.C.No.20112/09 - 2 - Commissioner conducted local inspection and filed a report and thereafter, both the applications were heard and the learned Munsiff passed a common order dismissing the application filed by the petitioner and allowing the application moved by the respondents. Against the orders as stated above, the petitioner preferred two appeals, one, against the dismissal of his application for injunction and the other, the allowing of the interim mandatory injunction on the application of the respondents. The appeals were numbered before two different Sub Courts, the Principal Sub Court and the Additional Sub Court, Irinjalakuda. When the petitioner applied for an interim relief for stay of the order of the interim mandatory injunction granted in favour of the respondents in the appeal preferred against the order passed by the learned Munsiff, the learned Sub Judge, after hearing the counsel on both sides, passed an order dismissing the application for interim relief and disposing of the C.M.Appeal itself with a direction to the court below to dispose the suit within three months from the date of receipt of the order. Ext.P3 is the copy of the order. Propriety and correctness of Ext.P3 order is impeached by the petitioner invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Learned counsel W.P.C.No.20112/09 - 3 - for the respondents submitted the relief claimed in the petition has become infructuous in as much as the interim mandatory injunction granted by the court had already been implemented pursuant to the dismissal of the C.M.Appeal by Ext.P3 order. Whatever that be, perusal of Ext.P3 order shows that the disposal of the C.M.Appeal by the learned Sub Judge while hearing of an application for interim relief moved in that appeal was patently erroneous and unsustainable in law. The appeal preferred against the order require to be disposed of by a judgment and not by way of an order after affording reasonable opportunity to the appellant and also the respondents to address the arguments on the merits of the case. The direction given by the court to dispose the suit within a period of three months is meaningless where it is seen that another C.M.Appeal preferred by the petitioner/plaintiff as against one application disposed under the common order is pending before another court. Ext.P3 order cannot be sustained and it is liable to be dismissed. I do so. Whether the interim mandatory injunction has been given effect to after dismissal of the appeal under Ext.P3 order cannot be given much merit and consideration where it is seen that the dismissal of the appeal was improper and unjustifiable. The court below is directed to take back the appeal on file and on such restoration, it is ordered that the W.P.C.No.20112/09 - 4 - appeal shall be transferred to the First Additional Sub Court where the other appeal preferred by the petitioner after the dismissal of the application under the common order , i.e. C.M.Appeal No.8/09 is pending so that the same court can consider both the applications and pass appropriate judgment after hearing the counsel on both sides. The First Additional Sub Judge is directed to hear and dispose both the appeals on receipt of the records in C.M.Appeal No.9/09 as expeditiously as possible, at any rate, within a period of three months from the date of receipt of such records. It is open to the respondents to canvass whatever grounds available to them including the reliefs have claimed in the appeals have become infructuous in the light of the subsequent events indicating that the interim mandatory injunction granted by the court has already been implemented. The First Additional Sub Judge shall dispose both the appeals arising from the common order on its merits, untrammelled by any of the observations made in Ext.P3 order. The Writ Petition is disposed as above. Transmit a copy of this judgment to the Principal Sub Court, Irinjalakuda and the Additional Sub Court, Irinjalakuda. srd S.S. SATHEESACHANDRAN, JUDGE