IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(C).No. 13926 of 2010(M) -------------------------- AGAINST THE ORDER IN IA.1038/2010 IN OS.143/2010 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------- 1. JAIJY MATHEW, AGED 42 YEARS, S/O.LATE MATHEW, ERAMBADATHIL HOUSE KOOTHATTUKULAM PO, PIN 686 662 RESIDING AT FLAT NO 802, BLUE LAGOON APARTMENTS CHILAVANOOR ROAD, ELAMKULAM, KOCHI-20 2. DR.DEEPTHI W/O.JAIJY MATHEW, DO..DO.. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------- DR.RAJU MATHEW, MELVETTATHU, MARANAGATTUPILLY PO, KOTTAYAM DISTRICT. ADV. SRI.GEORGE SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 COPY OF THE COMMON JUDGMENT DATED 29.10.2009 IN W.P(C) NO.23384 OF 19301 OF 2009. EXHIBIT P2 COPY OF THE ORDER DATED 11.3.2010 IN I.A. NO.3076 OF 2009 IN O.S. NO.509 OF 2009 PASSED BY THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P3 COPY O THE AGREEMENT DATED 16.9.2004 BETWEEN RESPONDENT AND FIRST PETITIONER EXHIBIT P4 COPY OF THE PHOTOGRAPH SHOWING THE BOARD AND THE WESTERN SIDE OF THE BUILDING EXHIBIT P5 COPY OF THE PHOTOGRAPH SHOWING THE SCAFFOLDINGS ERRECTED ON THE SOUTHERN SIDE FOR PLASTERING AND OTHER WORK EXHIBIT P6 COPY OF THE PLAINT IN O.S.NO.143/2010 EXHIBIT P7 COPY OF IA NO.1038/2010 EXHIBIT P8 COPY OF THE ORDER OF INJUNCTION SERVED ON THE PETITIONERS EXHIBIT P9 COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER EXHIBIT P10 COPY OF REPLY AFFIDAVIT FILED BY THE RESPONDENT EXHIBIT P11 COPY OF THE COMMISSION REPORT AND ROUGH SKETCH EXHIBITP12 COPY OF SALE DEED NUMBER 973/2001 RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.13926 of 2010 ==================================== Dated this the 01st day of June, 2010 J U D G M E N T Petitioners started with construction of a building at Koothattukulam facing the MC Road. Portions of the completed structure on the ground floor were assigned to different persons. According to the petitioners while those portions were assigned it was subject to a condition that petitioners have the right to construct the up-stair portions. Accordingly petitioners started construction of the first floor. Construction of the first floor was completed and one room on the first floor was allotted to the respondent again with a similar condition that the petitioners will have right to construct building on the up-stair portion of the room allotted to the respondent. Respondent has been running a Dental Clinic in the room assigned to him in the first floor and he put up a name board. Apprehending that petitioners may remove that name board, respondent filed O.S. No.143 of 2010 in the court of learned Munsiff, Muvattupuzha and obtained Ext.P8, interim order of injunction. Petitioners approached this Court with this Writ Petition. This Court while admitting the Writ Petition and ordering W.P(C) No.13926 of 2010 -: 2 :- notice to respondent issued an interim order of stay as payed for on 27.04.2010. ln the meantime application for temporary injunction was heard by the learned Munsiff and it was taken up for orders. But no orders have been pronounced. Respondent has a complaint that notwithstanding Ext.P8, interim order of injunction petitioners removed the name board on 26.04.2010 and filed the Writ Petition and obtained the stay. Petitioners of course denied the said allegations. 2. Now request of petitioners is that till the learned Munsiff dispose of the application for temporary injunction interim order passed by this Court may be kept alive. Learned counsel for respondent submits that since name board was removed by petitioners in violation of the interim order of injunction on 26.04.2010 respondent is entitled to file an application for mandatory injunction to direct petitioners to restore the name board at its original position as on the date of suit. It is also submitted that if any such application is filed that application may also be directed to be disposed of. 3. Having regard to the facts and circumstances of the case it is not necessary to go into the disputed questions stated before me. Those are matters which the court concerned has to decide at the appropriate stage. Needless to say that any W.P(C) No.13926 of 2010 -: 3 :- application for mandatory injunction if filed by respondent, that also has to be disposed of by the learned Munsiff. Learned Munsiff shall dispose of the said application if preferred as well as the application for temporary injunction untrammelled by the interim order of stay granted by this Court on 27.04.2010 or any observation as to the merit of the case found in this judgment. Writ Petition is disposed of in the following lines: (i) Learned Munsiff is directed to dispose of application for temporary injunction (I.A. No.1038 of 2010) at the earliest. (ii) In case any application for mandatory injunction is preferred by the respondent learned Munsiff shall dispose of that application also as provided under law after hearing both sides, if possible along with I.A.No.1038 of 2010. (iii) Until application for temporary injunction (I.A. No.1038 of 2010) is disposed of, the interim order of stay granted by this Court on 27.04.2010 will remain in force. THOMAS P. JOSEPH, JUDGE. vsv