IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 17299 of 2010(O) -------------------------- IA NO.2819/2009 IN CMA.148/2009 of ADDL.DISTRICT COURT-I, THRISSUR .................... PETITIONER(S): --------------- 1. SUMITHRA,AGED 78 YEARS,W/O.THACHAPPULLY SANKARA NARAYANAN,VALAPPAD BEACH DESOM,VALAPPAD VILLAGE,CHAVAKKAD TALUK,THRISSUR DISTRICT. 2. SURESH @ SURESH BABU,AGED 49, S/O.THACHAPPULLY SANKARA NARAYANAN,VALAPPAD BEACH DESOM,VALAPPAD VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. SREEVATSAN,AGED 58,S/O.THACHAPPULLY SANKARA NARAYANAN,VALAPPAD BEACH DESOM, VALAPPAD VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT. 4. SUNIL,AGED 44,S/O.THACHAPPULLY SANKARA NARAYANAN,VALAPPAD BEACH DESOM, VALAPPAD VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT. 5. AJITHA,AGED 35,W/O.POTTAKKATT VIJAYARAGHAVAN,CHETHAKOTTU KARA,THRISSUR. 6. SUVARNA GIRIJAKSHAN,AGED 50 YEARS, W/O.THACHAPPULLY,GIRIJAKSHAN,VALAPPAD BEACH DESOM,VALAPPAD VILLAGE,CHAVAKKAD TALUK. 7. SUPRABHA PRAKASHAN,AGED 35, W/O.THACHAPPULLY PRAKASHAN,DO. BY ADV. SRI.B.S.SURESH KUMAR SRI.ARJUN S.RAJ WP(C)17299/2010 2 RESPONDENT(S): --------------- 1. MOLLY,AGED 50, D/O.ARAYAMPARAMBIL CHITHAMBARAN, VALAPPAD BEACH DESOM,VALAPPAD VILLAGE, CHAVAKKAD TALUK,THRISSUR DISTRICT AND W/O.SOMAN,AISWARYA,19/505,COCHIN UNIVERSITY PO, SOUTH KALAMASSERY,KOCHI. 2. SOMAN,AGED 55,AISWARYA,19/505, COCHIN UNIVERSITY PO, SOUTH KALAMASSERY,KOCHI. ADV. SRI.PHILIP T.VARGHESE FOR R1 & 2 SRI.THOMAS T.VARGHESE FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.17299/2010 APPENDIX PETITIONERS'EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE APPEAL IN CMA NO.148/2009 ON THE FILES OF FIRST ADDL.DISTRICT JUDGE, THRISSUR EXT.P2 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.379/2009 ON THE FILES OF MUNSIFF COURT, CHAVAKKAD EXT.P3 TRUE PHOTOCOPY OF THE COMMISSION REPORT AND SKETCH IN OS 379/2009 ON THE FILES OF MUNSIFF COURT, CHAVAKKAD EXT.P4 TRUE PHOTOCOPY OF THE COMMON ORDER DATED 17.08.2009 IN IA NO.1654/2009 IN OS 379/2009 AND IA NO.2047/2009 IN OS 374/2009 ON THE FILES OF MUNSIFF COURT, CHAVAKKAD EXT.P5 TRUE COPY OF THE COMMON ORDER DATED 21.01.2010 IN IA NO.2819/2009 IN CMA NO.148/2009 ON THE FILES OF FIRST ADDL.DISTRICT COURT, THRISSUR. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.17299 of 2010 -------------------------------------- Dated this the 17th day of June, 2010. JUDGMENT An interim order of stay granted by learned Additional District Judge-I, Thrissur on I.A.No.2819 of 2009 in C.M.A.No.148 of 2009 is under challenge in this proceeding. Petitioners filed a suit for injunction in the vacation court which was numbered as I.A.No.1110 of 2009 and renumbered as O.S.No.379 of 2009 of the court of learned Munsiff, Chavakkad. Petitioners prayed for a decree for prohibitory injunction restraining respondents from interfering with plaint B schedule pathway. Respondent No.1 also filed a suit in the vacation court, numbered as I.A.No.1143 of 2009 and renumbered as O.S.No.374 of 2009 of the court of learned Munsiff, Chavakkad. That was for a decree for prohibitory injunction restraining petitioners from trespassing into the property described therein. There were cross-applications for injunction in the above lines prayed for by the parties in the respective suits as I.A.No.1654 of 2009 in O.S.No.379 of 2009 and I.A.No.2047 of 2009 in O.S.No.374 of 2009. Those applications were heard by the learned Munsiff and disposed of vide Ext.P4, order. As per that order I.A.No.1654 of 2009 was allowed granting temporary injunction restraining respondents from causing obstruction to the plaint B schedule pathway . Learned Munsiff has hastened to add that while petitioners use the said pathway they shall not cause nuisance to the inmates of the house of respondents and that petitioners shall not widen the pathway WP(C) No.17299/2010 2 beyond four feet. I.A.No.2047 of 2009, in the circumstances was dismissed. Respondents challenged that common order in C.M.A.Nos.148 of 2009 and 149 of 2009 before learned Additional District Judge-I, Thrissur. In C.M.A.No.148 of 2009 they moved I.A.No.2819 of 2009 for stay of operation of the order on I.A.No.1654 of 2009. Learned Additional District Judge after hearing both sides passed the following order: “Counter filed. Heard both sides. I.A. is allowed. Interim stay is granted until further orders”. Grievance of petitioners is that the stay order, not to say it is a non-speaking order does not take into account the report of Advocate Commissioner and right of petitioners as prima facie found by the learned Munsiff. Petitioners therefore seek to set aside the said stay order. Learned counsel for respondents contended that order was passed after hearing both sides and considering the objection preferred by petitioners and hence there is no reason to interfere with the impugned order. 2. The Advocate Commissioner who visited the disputed property has reported condition of the property as well as the disputed pathway in Exts.C1 to C4. Learned counsel on both sides say that the C.M.Appeals are ripe for hearing and that the same may be directed to be disposed of at the earliest. Having regard to the said fact as well as right claimed by petitioners and also the condition of property and the disputed pathway stated by the Advocate Commissioner in her report, what is required is only to direct the parties to WP(C) No.17299/2010 3 comply with order passed by learned Munsiff on I.A.No.1654 of 2009 without prejudice to the rights and contentions of parties which are to be decided in trial. Resultantly this Writ Petition is allowed in the following lines: i. Order under challenge is set aside and instead, parties are directed to comply with direction in the order passed by the learned Munsiff on I.A.No.1654 of 2009 in O.S.No.379 of 2009 until disposal of C.M.Appeals. ii. Parties shall maintain the condition of property and the disputed pathway as reported by the Advocate Commissioner in her reports and plan. iii. Learned Additional District Judge shall expedite disposal of the C.M.Appeals. THOMAS P.JOSEPH, Judge. cks