IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 17445 of 2009(O) -------------------------- JUDGMENT INCMA.78/2005 of I ADDL. DISTRICT COURT, PALAKKAD. I.A. NO.997/2004 IN OS. NO.335/2001 OF THE MUNSIFF COURT, ALATHUR. .................... PETITIONER(S): -------------------------- P. PRAKASH, REGIONAL MANAGER, TATA CONSULTANCY SERVICE, NOTTINGAM, U.K, BY POWER OF ATTORNEY, A. RAVEENDRANATHAN, VRINDAVANAM, NAIR THARA, VADAKKANCHERRY VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 683. BY ADVS.MR.G.SHRIKUMAR MR.SREEJITH S.NAIR RESPONDENT(S): ------------------------- 1. SEETHALAKSHMY AMMA, D/O. THATHA ALIA BHARGHAVI AMMA, PUNNAKKAT HOUSE, NAIR THARA, VADAKKANCEHRRY VILLAGE AND POST, ALATHUR TALUK, PALAKKAD DISTRICT. 2. SIVASANKARAN, D/O. THATHA ALIAS BHARGHAVI AMMA, VELLAT HOUSE, ANGAMASALA, KUNISSERY VILLAGE AND POST, ALATHUR TALUK, PALAKKAD DISTRICT. 3. M. PRASAD, RASMI VILLA, NAIR THARA, VADAKKANCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.17445 of 2009 - O --------------------------------- Dated this the 17th day of July, 2009 J U D G M E N T This writ petition is filed seeking the following relief: “To set aside Ext.P4 judgment and allow Ext.P2 petition.” 2. Petitioner is the plaintiff in O.S.No.335/2001 on the file of the Munsiff Court, Alathur. Suit was one for perpetual prohibitory injunction. The case of the petitioner is that during the trial of the suit, the defendants gave an undertaking that they will not interfere with the peaceful enjoyment of the plaintiff over the plaint schedule property. However, the court, after trial, holding that the plaintiff has not made out a case for the relief of decree of perpetual prohibitory injunction, dismissed the suit. Ext.P1 is the copy of that judgment. Petitioner preferred an appeal, which was also dismissed. A second appeal filed is pending consideration before this Court. After the dismissal of the suit flouting the written undertaking given before the court the defendants who are the respondents in the writ petition interfered with and obstructed the enjoyment of the plaintiff and W.P.(C).No.17445 of 2009 - O 2 also inducted strangers in the plaint property, is the case of the petitioner/plaintiff. Petitioner moved an application under Order XXXIX Rule 2A before the trial court to take action against the defendants for violating the undertaking and that application after enquiry was dismissed. Ext.P3 is the copy of that order. Against dismissal of that petition, petitioner moved a C.M.A. before the District Court, which also ended in dismissal by Ext.P4 judgment. Challenging the propriety and correctness of Ext.P4 judgment, this writ petition has been filed seeking the aforementioned relief invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the materials tendered in the writ petition, I find no notice to the respondents is necessary and it is dispensed with. 4. Suit filed by the plaintiff for a decree of perpetual prohibitory injunction in which a written undertaking is stated to have been given by the defendants, after its dismissal, is pending W.P.(C).No.17445 of 2009 - O 3 consideration before this Court in second appeal. The entitlement of the petitioner whether he could proceed against the defendants for the alleged violation of the undertaking given before the court after the dismissal of the suit will depend upon the result of the second appeal. If the second appeal is decided in favour of the petitioner/plaintiff, necessarily and inevitably, all the legal consequences on the basis of the undertaking binding the defendants will revive and then the application moved under Order XXXIX Rule 2A will have to be decided with reference to the undertaking given by the defendants. In case the second appeal fails, then the undertaking given by the defendants before the trial court will be of no avail for entertaining an application under Order XXXIX Rule 2(a) . Reserving the right of the plaintiff to proceed against the defendants subject to result of the second appeal as aforementioned, this writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-