IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 22933 of 2009(O) -------------------------- CMA.7/2009 of SUB COURT, OTTAPPALAM OS.26/2009 of MUNI-MAGI.COURT,PATTAMBI .................... PETITIONER(S): ------------------------- 1. SHIHABUDEEN, S/O. LATE KONDAYAN MUHAMMED MOIDEEN, KALLADIPATTA AMSOM, PEROKKARA DESOM, OTTAPALAM TALUK. 2. SAINUDEEN, S/O. -DO- -DO- BY ADVS. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN, MR.R.SURAJ KUMAR, SMT.GEETHA P.MENON, MR.P.M.NEELAKANDAN. RESPONDENT(S): --------------------------- 1. ONGALLUR GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, ONGALLUR VILLAGE, KALLADIPATTA AMSOM, OTTAPALAM TALUK. 2. SAIDALAVI, S/O. MUHAMMED, ALIKKAL, PATTAMBI PALLIPRAM AMSOM AND DESOM, OTTAPALAM TALUK. 3. ABDURAHIMAN, S/O. -DO- -DO- 4. UMMERKUTTY, S/O. VARAMANGALATH MUHAMMED, KALLADIPATTA AMSOM, MULOORKKARA DESOM, OTTAPALAM TALUK. Kss ..2/- ...2..... WPC.NO.22933/2009 O 5. MUAMMADALI, S/O. VARAMANGALATH AHAMMEDKUTTY, PATTAMBI, PALLIPRAM AMSOM AND DESOM, OTTAPALAM TALUK. 6. HYDRU, S/O. PARATHODIYIL MUHAMMED, PATTAMBI PALLIPRAM AMSOM, KONDURKKARA DESOM, OTTAPALAM TALUK. 7. KAMMUKUTTY, S/O. KUNHIPOCKER, VARAMANGALAM, VARODE AMSOM AND DESOM, OTTAPALAM TALUK. 8. MUHAMMED ASHARAF, S/O. MADHUKKAL KUTTY HASSAN HAJI, EDAYUR AMSOM, POOVATHUMTHARA DESOM, TIRUR TALUK. R1 BY MR.K.RAMAKUMAR, SENIOR ADVOCATE MR.T.RAMPRASAD UNNI, MR.J.R.PREM NAVAZ. R4 & R8 BY ADV. MR.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22933/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: DATED 16/02/2009, COPY OF THE COMMISSION REPORT IN OS.NO.26 OF 2009, MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P2: DATED NIL, COPOY OF THE PLAN PREPARED BY THE COMMISSIONER. P3: DATED 21/1/2009, COPY OF THE RESOLUTION PASSED BY RESPONDENT NO.1 PANCHAYAT. P4: DATED 5/12/2008, COPY OF THE APPLICATION FILED BY RESPONDENT NO.2 AND OTHERS BEFORE RESPONDENT NO.1. P5: DATED 4/3/2009, COPY OF THE COMMON ORDER OF THE MUNSIFF - MAGISTRATE, PATTAMBI IN I.A.NOS.174 & 175/2009 IN O.S.26/2009. P6: DATED 19/07/2009, COPY OF THE COMMON JUDGMENT IN CMA NOS. 6 AND 7 OF 2009, SUB COURT, OTTAPALAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22933 OF 2009 -------------------------- Dated this the 1st day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records relating to Ext.P5 order fro the court of the Munsiff Magistrate, Pattambi and Ext.P6 judgment from the Subordinate Judge's Court, Ottapalam and set aside the said order and judgment. ii) Issue a writ of certiorari or any other writ or order quashing Ext.P5 order and Ext.P6 judgment. iii) Allow I.A No.174 of 2009 and I.A No.175 of 2009 in O.S No.26 of 2009 on the file of the Munsiff Magistrate, Pattambi, as prayed for. iv) Issue an interim injunction restraining respondent No.1 herein from allotting W.P.(C).No.22933 OF 2009 Page numbers building numbers to the unnumbered buildings in plaint B schedule property in O.S No.26 of 2009 on the file of the Munsiff Magistrate, Pattambi and restraining respondents 2 to 8 herein from proceeding with any further construction activities in the said property, including putting up a 1st floor upon the existing building. v) Grant the petitioner such other appropriate reliefs that this Hon'ble Court may deem fit to grant on the facts and circumstances of the case. vi) Award the petitioner the costts of this Writ Petition. 2. Petitioners are the plaintiffs in O.S No.26 of 2009 on the file of the Munsiff Magistrate Court, Pattambi. Suit is one for perpetual prohibitory injunction, and the respondents are the defendants. The dispute involved related to the W.P.(C).No.22933 OF 2009 Page numbers construction put up by the defendants 2 to 8 which was objected to by the petitioner/plaintiff as relative of the Building Rules. Petitioners/plaintiffs moved an application for interim injunction to restrain the first respondent from allotting numbers to the building and also another application for injunction to restrain defendants 2 to 8 from proceeding with the construction activities till the disposal of the suit. The defendants filed objections to both the applications. The learned Munsiff after hearing both sides declined the discretionary reliefs sought for by the petitioners/plaintiffs. The appeals preferred against such orders after hearing both sides were dismissed concurring with the findings entered by the court below. Writ petition has been filed challenging the propriety and correctness of the order/judgment passed by the two courts below. W.P.(C).No.22933 OF 2009 Page numbers 3. I heard the counsel on both sides. At the time of admitting the writ petition, an interim order was passed by this court restraining the panchayat from allotting any number to the rooms 1 to 6 shown in Ext.P3, situate on the eastern side, if not already numbered, for a period of two weeks, which later extended continue to be in force. Having regard to the limited scope of entertaining challenges against the concurrent findings passed by the two courts below in the interlocutory applications moved by the petitioners/plaintiffs, the learned counsel appearing for them submitted that the writ petition may be disposed retaining the interim order passed by this court till disposal of the suit on its merits. Having regard to the submissions made and taking note of the facts and circumstances presented, I find the request is just and W.P.(C).No.22933 OF 2009 Page numbers reasonable. What is required is an early disposal of the suit on its merits giving a quietus to the whole controversy. I direct the learned Munsiff to give the suit top priority in hearing and dispose it as expeditiously as possible untrammelled by any of the observations made in its Ext.P5 order and also that of the appellate court in Ext.P6 judgment, at any rate within a span of four months from the date of receipt of a copy of this judgment. The interim order passed by this court shall continue to be in force till the disposal of the suit on merits. The learned counsel appearing for the respondents submitted that they have raised a challenge against the suit claim contending that the suit is not maintainable and it is requested that a direction be given to the court below for considering the maintainability of the suit as a preliminary issue. No such direction is required from this court for the reason that if the W.P.(C).No.22933 OF 2009 Page numbers maintainability of the suit canvassed by the defendant can be gone into without taking evidence and such an adjudication is permissible in the given facts of the case under Order 14 Rule 2(2) of the Code of Civil Procedure respondents can canvass for consideration of that issue as a preliminary issue. Interim order passed by this court will continue till further orders. Subject to the above observations the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv