IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 32494 of 2009(O) -------------------------- OS.42/2006 of SUB COURT, NEDUMANGAD CMA.19/2006 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... PETITIONER(S): --------------- 1. SOBHANA, W/O.RAVEENDRAN, AGED 44 YEARS, VARAYIDINJAKUZHI, MALLAMBRAKONATHU VEEDU, MANNOORKONAM P.O., KARIPOOR VILLAGE, NEDUMANGAD. 2. PADMAVATHI, D/O.KOUSALYA, AGED 33 YEARS, VARAYIDINJAKUZHI, MALLAMBRAKONATHU VEEDU, MANNOORKONAM P.O., KARIPOOR VILLAGE, NEDUMANGAD. 3. RAVEENDRAN, S/O.NARAYANAN, AGED 46 YEARS, VARAYIDINJAKUZHI, MALLAMBRAKONATHU VEEDU, MANNOORKONAM P.O., KARIPOOR VILLAGE, NEDUMANGAD. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT(S): --------------- ALOSHIOUS, S/O.DANIEL NADAR, AGED 42 YEARS, PERILA KIZHAKKUMKARA, PUTHEN VEEDU, MANNOORKIONAM P.O., KARIPOORU VILLAGE, NEDUMANGAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.32494 OF 2009 -------------------------------- Dated this the 13th day of November 2009 ---------------------------------------------------------- JUDGMENT Petitioners are the defendants in O.S No. 42 of 2006 on the file of the Additional Munsiff Court, Nedumangad. Suit is for declaration of title and injunction, and the respondent is the plaintiff. In the suit, respondent/plaintiff moved an application for interim injunction to restrain the petitioners/defendants from altering the lie and nature of the plaint 'C' schedule property and from interfering with the use of that property by the plaintiff. That application was dismissed by the learned Munsiff vide Ext.P1 order. Respondent/plaintiff challenged Ext.P1 order before the Sub Court, Nedumangad and the learned Sub Judge after hearing both sides, reversing the order of the learned Munsiff, granted an interim order of injunction in favour of the respondent/plaintiff vide Ext.P2 judgment. Propriety and W.P.(C).No.32494 OF 2009 Page numbers correctness of that judgment is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and hence it is dispensed with . From the submissions made and also perusing Ext.P1 order of the learned Munsiff and Ext.P2 judgment of the learned Sub Judge, it is seen, the interim injunction filed by the respondent/plaintiff was resisted by the petitioners/defendants raising two fold contentions. Plaintiff had previously filed a suit for injunction and latter that suit was dismissed after a petition for withdrawing the suit with liberty to file fresh suit moved by the plaintiff was rejected by the court was one of the two objections canvassed. Second objection raised by the defendant was that the claim of the plaintiff over plaint 'C' schedule property as an easement of necessity is not sustainable as alternative pathways are available for ingress and egress to his W.P.(C).No.32494 OF 2009 Page numbers property. It is seen that the learned Munsiff impressed by the objection made that the previous suit filed by the respondent/plaintiffs had been dismissed, dismissed the application for injunction. The learned Sub Judge after appreciating the facts and circumstances presented in the case and taking note that in the present suit is for relief of declaration of title over the pathway, and also for consequential reliefs, concluded that the dismissal of the previous suit passed on a cause of action different from what is canvassed in the present suit has no impact on the right of the plaintiff in seeking the reliefs under the present suit. Examining the question whether the plaintiff has made out a prima facie case on the basis of the materials produced, especially Ext.C1 report and Ext.C1(a) plan prepared by an advocate commissioner deputed in the case, the learned Sub Judge was satisfied that the plaintiff was entitled to the interim injunction. Perusing Ext.P2 judgment, I find no impropriety or illegality warranting interference. It is also noticed, the suit had been filed as early in 2006, and in view of the pendency of the appeal, the trial is delayed. W.P.(C).No.32494 OF 2009 Page numbers The learned Munsiff is directed to dispose the suit expeditiously untrammelled by any of the observations made in his Ext.P1 order or Ext.P2 judgment rendered by the learned Sub Judge. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv