IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).NO. 730 OF 2010(O) ------------------------------------- CMA.10/2007 OF SUB COURT, HOSDRUG OS.312/2006 OF MUNSIFF COURT, HOSDRUG .................... PETITIONER: -------------------- M.R.RAGHAVENDRA HEGDE,S/O RAMAPPA HEGDE, RESIDING AT PRASHANTHI NILAYAM,THOYAMMAL, HOSDURG VILLAGE,KANHANGAD.P.O,KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): ------------------------ 1. M.M.SADHASIVA HEGDE,S/O.MADHAVA HEGDE, THOYAMMAL,HOSDURG VILLAGE,KANHANGAD.P.O, KASARAGOD DISTRICT. 2. M.SANKARA,S/O.MADHAVA HEGDE,THOYAMMAL, HOSDURG VILLAGE,KANHANGAD.P.O,KASARAGOD DISTRICT. 3. M.R.PRADEEP KUMAR,S/O.RAGHAVENDRA HEGDE, RESIDING AT PRASANTHI NILAYAM,THOYAMMAL, HOSDORG VILLAGE,KANHANGAD.P.O,KASARAGOD DISTRICT. ADV. SRI.T.K.VIPINDAS SRI.SANTHOSH MATHEW THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.730 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE ORDER DATED 3.2.2007 PASSED BY THE COURT BELOW. EXHIBIT P2 TRUE COPY OF THE JUDGMENT PASSED BY THE APPELLATE COURT IN CMA NO.10/2007. EXHIBIT P3 TRUE COPY OF THE REPORT AND PLAN DATED 14.2.2009 OF THE ADVOCATE COMMISSIONER. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. To Judge THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.730 of 2010 -------------------------------------- Dated this the 13th day of July, 2011. JUDGMENT First defendant in O.S.No.312 of 2006 of the court of learned Munsiff, Hosdurg is the petitioner before me, aggrieved by Ext.P1, order passed by the learned Munsiff on I.A.No.3653 of 2006 and Ext.P2, judgment of the learned Sub Judge, Hosdurg in C.M.A.No.10 of 2007. The order of learned Munsiff was confirmed by the learned Sub Judge. Petitioner has been directed to remove the gate allegedly constructed after institution of the suit. The suit is for prohibitory injunction to restrain petitioner and third respondent from obstructing the use of plaint C schedule by respondents 1 and 2. Immediately after institution of the suit the Advocate Commissioner inspected property and submitted a report. Advocate Commissioner reported that there were two pillars on the sides of plaint C schedule. Later, it is alleged, petitioner and others installed gate on the said pillars thereby obstructing respondents 1 and 2 using the said way. Respondents 1 and 2 filed I.A.No.3653 of 2006 for an order of mandatory injunction as above stated which learned Munsiff allowed and the learned Sub Judge confirmed. It is submitted by learned counsel for petitioner that there was no injunction granted at the time of institution of the suit. It is also submitted by learned counsel that it is not a new gate installed by petitioner or the other contesting defendants. According to the learned counsel for respondents 1 and OP(C) No.730/2010 2 2, a gate which was not existence at the time of first inspection of the Commissioner was constructed causing obstruction to the use of plaint C schedule. 2. When this matter came up for admission I had issued an interim order on 16.11.2010 that execution of the order in relation to mandatory injunction is stayed and that petitioner shall keep the disputed gate unlocked through out, during the period of stay. Having heard learned counsel on both sides what is required for the time being is only to ensure that the use of plaint C schedule by respondents 1 and 2 until disposal of the suit and subject to the result of the suit is not obstructed. That could be ensured by directing petitioner and other defendants not to lock the gate in question. Resultantly this Original Petition is disposed of in the following lines: i. The direction issued by learned Munsiff as confirmed by learned Sub Judge to the petitioner and other defendants to remove the gate is set aside. ii. Instead, it is directed that the said gate shall be kept unlocked by the petitioner and other contesting defendants throughout, until disposal of the suit and subject to its result. They are also directed not to cause any obstruction to respondents 1 and 2 using plaint C schedule until disposal of the suit and OP(C) No.730/2010 3 subject to its result. iii. Parties could urge the contentious issues as they have urged even as regards construction of the gate in the course of trial. I.A.10929 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks