IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(C).No. 21938 of 2010(O) -------------------------- CMA.27/2010 of SUB COURT, PAYYANNUR OS.16/2010 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- 1. KUTHIRAKKAL LATHA, AGED 40 YEARS, TEACHER, RESIDING AT RAMANTHALI AMSOM AND KUNNARU DESOM, KARANTHAD (NOW RESIDING AT DELHI). 2. KUTHIRAKKAL LEENA,36 YEARS,CURATOR, R/AT.RAMANTHALI AMSOM,KUNNARU DESOM,KARANTHAD, NOW R/AT.MANGALORE,THROUGH THEIR MUKTHIAR HOLDER KUNHAMBU(FATHER),S/O.CHIRUTHAI,71 YEARS, RETIRED COLONEL,KARANTHAD,KUNNARU P.O., RAMANTHALI. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.MAHESH V RAMAKRISHNAN RESPONDENT(S): --------------- 1. MUTTIL RAJAN,S/O.KUNHIRAMAN, 49 YEARS,KUNNARU P.O.,RAMANTHALI, (NOW IN GULF) - REP. BY HIS POWER OF ATTORNEY HOLDER KOYAKKEEL KALLYANI, W/O.KUNHIRAMAN, 75 YEARS, KUNNARU P.O., RAMANTHALI, KANNUR DISTRICT. 2. KOYAKKEEL RAMANI, W/O.MUTTIL RAJAN, AGED 40 YEARS, KUNNARU P.O., RAMANTHALI, KANNUR DISTRICT. ADV. SRI.O.V.MANIPRASAD FOR R1 & 2 SRI.K.R.RENJITH (ADVOCATE COMMISSIONER) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ W.P(C).No.21938 OF 2010 ------------------------------ Dated this the 31 st day of January, 2011 JUDGMENT The plaintiffs in O.S.No.16 of 2010 on the file of the Court of the Munsiff of Payyannur, challenge the order dated 25.6.2010 in CMA No.27 of 2010 on the file of the Court of the Subordinate Judge of Payyannur, by which the court below set aside the order passed by the trial court in I.A.No.759 of 2010. The trial court was directed to dispose of I.A.No.170 of 2010 and the suit itself on the merits untrammeled by any of the observations made by the appellate court. 2. The suit was filed for declaration of easement right and injunction in respect of plaint 'C' schedule pathway. As per the order dated 8 th April, 2010 in I.A.No.759 of 2010, the trial court issued an order of interim mandatory injunction directing the defendants to remove the obstruction W.P(C).No.21938 OF 2010 2 caused to the plaint C schedule pathway. As per the order in I.A.No.170 of 2010, an interim order of injunction was granted in favour of the plaintiffs. It was alleged by the plaintiffs that obstruction was caused to the pathway, in violation of the order of interim injunction. 3. The respondents filed appeal as CMA No.27 of 2010 before the Sub Court, Payyannur challenging the order passed in I.A.759 of 2010. The CMA was allowed and directions were issued to the trial court as mentioned in Paragraph 1 above. 4. After hearing both parties, a learned Single Judge of this court passed an order on 7 th September, 2010 in this Original Petition, which reads as follows: “Heard counsel on both sides. Counsel for respondents asserts and counsel for petitioners with equal vehemence denies existence of a way/ridge from the Palakkode-Kunnaru Road through the property of respondents on the east of plaint A and B W.P(C).No.21938 OF 2010 3 schedules through which according to respondents, petitioners could gain access to the plaint A schedule. Since existence of the pathway/ridge is asserted and denied, it is necessary to appoint an Advocate Commissioner to ascertain that fact so that, if there is any such way in existence petitioners could be permitted to use that pathway until disposal of the suit. In the circumstances, Advocate Sri.Renjith K.R.is appointed as Commissioner to inspect the properties and report with reference to the sketch prepared by Advocate Commissioner Sri.V.M.Vijayaraghavan whether any such pathway/ridge as referred to above exists and if so, whether that way/ridge could be used for access to the plaint A schedule from the public road referred to above. Batta payable to the Advocate Commissioner is fixed as Rs.7,500/-(Rupees Seven thousand and five hundred only). The Batta shall be paid to the Advocate Commissioner directly and on his filing receipt warrant of inspection will be issued. Commissioner shall inspect the property with notice to counsel on both sides. Advocate Commissioner shall submit report within 3 weeks from this day.” 5. A Commissioner appointed by this court who inspected the property and filed a report and sketch dated 1 st October, 2010. 6. Both sides put forward their respective arguments on the basis of the aforesaid report and W.P(C).No.21938 OF 2010 4 sketch as well. 7. It is submitted that the suit is listed for trial to 1.2.2011. 8. The learned counsel for the petitioners submitted that in view of the subsequent developments, and the report submitted by the Commissioner before this court, it is necessary for the trial court to take into account those aspects as well. There is no dispute for the respondents that the report and sketch submitted by the Commissioner before this court is also required to be looked into by the trial court. 9. It is also submitted by the counsel for the petitioners/plaintiffs that some more time is required for the petitioners to get ready for the trial of the suit. If the suit is taken up for trial on 1 st February, 2010, great prejudice will be caused to the parties. W.P(C).No.21938 OF 2010 5 10. Since the suit is listed for trial, I do not think it is necessary to decide the Writ Petition on the merits and to consider whether the order passed by the court below in the CMA was justified or not. The lower appellate court also thought it fit that the suit itself is to be disposed of. Now, in view of the subsequent developments and also in view of the fact that the suit is listed for trial to 1.2.2011, I do not think it is necessary to dispose of this Writ Petition after considering the legality or propriety of the judgment passed by the lower appellate court. It is sufficient if the Writ Petition is disposed of in the following manner: a) All the contentions of the parties are left open to be considered in the suit. b) The suit shall be disposed of untrammeled by any of the observations and findings made by the trial court in I.A.No.759 of W.P(C).No.21938 OF 2010 6 2010 and the judgment in CMA No.27 of 2010. c) The report and sketch submitted by the Commissioner appointed by this court shall be forwarded to the trial court. The trial court shall take the same on file. d) Both parties will be entitled to file objections to the report submitted by the Commissioner appointed by this court. e) The trial court shall adjourn the trial of the suit for a period of 15 days to enable the parties to get ready for trial. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE. cms