IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WP(C).No. 36060 of 2008(P) -------------------------------------- CMA.NO.46/2008 OF SUB COURT,KOTTARAKKARA, OS.NO.463/2008 OF MUNSIFF COURT, KOTTARAKKARA. .................... PETITIONER: ------------------- DANIEL, S/O KORUTHU KOCHUMMEN, KANNANKARA KIZHAKKETHIL, BIJU BHAVAN PUTHUR MURI, PUTHOOR VILLAGE, KOTTARAKKARA TALUK. BY ADV. MR.T.A.SHAJI. RESPONDENT: ---------------------- JOSE MONY, S/O. JOHN, ERAMATHU PUTHEN VEEDU, CHUNKATHARA, PUTHOOR MURI, PUTHOOR VILLAGE, KOTTARAKKARA TALUK. BY ADVS. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD, MR.P.MOHANDAS (ERNAKULAM). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36060/2008-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMMON ORDER DTD. 14/10/2008 IN I.A. NO. 2505/08 AND I.A. NO. 2822/2008 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXT.P.2: COPY OF THE ORDER DTD. 14/11/08 IN I.A. NO. 3253/08 IN O.S. 463/08 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA. EXT.P.3: COPY OF THE JUDGMENT DTD. 19/11/08 IN W.P.(C).NO. 33948/08 OF THIS HON'BLE COURT. EXT.P.4: COPY OF THE ORDER DTD. 27/11/08 IN C.M.A. NO. 46/2008 ON THE FILE OF THE SUB COURT, KOTTARAKKARA. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE COMMISSIONER'S REPORT FILED BEFORE THE MUNSIFF'S COURT, KOTTARAKARA IN O.S. NO. 463/2008. EXT.R1.B: COPY OF THE PHOTOGRAPH SHOWING THE DEMOLITION OF A PART OF THE COMPOUND WALL CONSTRUCTED BY THIS RESPONDENT. EXT.R1.C: COPY OF THE F.I.R. REGISTERED BY THE SUB INSPECTOR OF POLICE, KOTTARAKARA POLICE STATION DTD. 24/11/2008. EXT.R1.D: COPY OF THE SECOND REPORT FILED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF'S COURT, KOTTARAKARA IN O.S. NO. 463/2008. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. --------------------------------------- WP(C) No.36060 of 2008-P --------------------------------------- Dated 5th March 2010 Judgment In this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the following reliefs are sought for : “i. set aside Exts.P1, P2 and P4. ii. direct the respondent to demolish the compound wall constructed pursuant to and on the strength of Exts.P1 and P2 and to restore a status quo as on14.10.2008, the date on which Ext.P1 order was passed.” 2. The petitioner is the plaintiff in OS No.463/08, which is a suit for injunction restraining the defendant from trespassing into Pliant B schedule property and demolishing the boundary of plaint B schedule and constructing a new boundary wall. It is submitted that the plaintiff claimed easement right over Plaint B schedule property by prescription. IA No.2505/08 was also filed for interim injunction. The defendant entered appearance and contested the suit. He disputed the very existence of the WPC 36060/08 2 disputed pathway and submitted that he is entitled to construct the boundary wall. The defendant also filed IA No.2822/08 to restrain the plaintiff from obstructing him from constructing a boundary wall. The Trial Court heard both the applications together and by order dated 14.10.2008, dismissed IA No.2505/08 filed by the plaintiff and allowed IA No.2822/08 filed by the defendant. Aggrieved by the said order, the plaintiff took up the matter in CMA Nos.46/08 and 47/08 before the Sub Court, Kottarakkara. CMA No.46/08 was directed against the order, which went in favour of the defendant. The plaintiff also filed IA No.1579/08 before the Appellate Court, seeking stay of operation of the injunction order passed against him. Even though the matter was heard, orders were not passed by the Appellate Court. In the meanwhile, the defendant approached the Trial Court by filing IA Nos.3253/08 and 3244/08 complaining that the plaintiff was not permitting him to complete the construction of the compound wall. The Trial Court allowed both the WPC 36060/08 3 applications. Since the appeal and the stay petition filed by the petitioner have not been disposed of, the petitioner has approached this Court, praying for appropriate reliefs. 3. This Court called for a report from the Munsiff's Court, Kottarakkara regarding the fate of the appeal filed by the petitioner as against the order in IA No.2822/08. The report was to the effect that the stay petition filed in the appeal alone was heard and orders thereon would be passed on or before 29.11.2008. Accepting the said report, this Court disposed of the Petition filed by the plaintiff as follows : “In the circumstances, operation of orders dt.14.11.2008 on IA No.3253/08 and IA No.3244/08 in OS No.463/08 on the file of the Munsiff's Court, Kottarakkara shall be kept in abeyance till 04.12.08 and the Sub Judge, Kottarakkara is directed to dispose of Ext.P3 stay petition (IA No.1579/08 in CMA No.46/08) before 29.11.2008.” 4. According to the learned counsel for the petitioner, thereafter, the CMAs had not been posted for hearing. The petition was waiting for orders on the stay petition. To their surprise, the CMAs were disposed of by WPC 36060/08 4 order dated 27.11.2008. The petitioner submits, the said order was passed without giving him an opportunity of being heard. The prayer in this Writ Petition is to have the matter re-heard. 5. At the time of hearing, the learned counsel for the petitioner submitted that the Court below may be directed to dispose of OS No.463/08 within a time frame to be fixed by this Court. The learned counsel for the respondent has no objection for the same. Accordingly, this Writ Petition is disposed of directing the Munsiff's Court, Kottarakkara to take up OS No.463/08 pending before the said Court and dispose of the same in accordance with law as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this Judgment. Till such time, the status quo as per the Commissioner's report shall be maintained. P.BHAVADASAN, JUDGE sta WPC 36060/08 5 WPC 36060/08 6