IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 OP(C).No. 1662 of 2011(O) AGAINST THE ORDER DATED 11.3.2011 IN CMA.42/2010 OF SUB COURT, PAYYANNUR FROM THE ORDER DATED 6.11.2010 IN OS.NO.404/2010 OF MUNSIFF'S COURT, THALIPARAMBA PETITIONER/ APPELLANT/PLAINTIFF ---------------------------------------- KURIAN APPOZHIPARAMBIL,S/O.KURIAN AGED 56 YEARS,PONNUMPARAMBA PAYYAVOOR AMSOM, DESOM,PAYYAVOOR.P.O,THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.U.BALAGANGADHARAN SRI.G.GIREESH RESPONDENT:RESPONDENT: DEFENDANT: --------------- VINCENT THOMAS,S/O.THOMMAN @ THOMAS, AGED 43 YEARS,PULIVELIL HOUSE,PONNUMPARAMBA, PAYYAVOOR.P.O,PAYYAVOOR AMSOM,THALIPARAMBA TALUK, KANNUR DISTRICT-670141. BY ADV. SRI.K.SUBASH CHANDRA BOSE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ADVOCATE COMMISSION REPORT IN O.S.NO.404 OF 2010 DATED 15.10.2010 WITH SKETCH. EXT.P2 TRUE COPY OF THE ORDER DATED 6.11.2010 IN I.A.NO.2528/2010 OF MUNSIFF'S COURT, THALIPARAMBA. EXT.P3 TRUE COPY OF THE ORDER DATED 11.3.2011 IN CMA.NO.42/2010 OF THE SUB COURT, PAYYANNUR. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE PLAINT IN O.S.NO.404 OF 2010 BEFORE THE MUNSIFF'S COURT, TALIPARAMBA. EXT.R1(b) TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR INJUNCTION IN I.A.NO.2528/2010 IN O.S.NO.404 OF 2010. EXT.R1(c) TRUE COPY OF THE COUNTER TO INJUNCTION APPLICATION IN I.A.NO.2528/2010 IN O.S.NO.404 OF 2010. EXT.R1(d) TRUE COPY OF THE AFFIDAVIT CONTAINING THE OBJECTION TO COMMISSION REPORT AND PRAYER TO EXAMINE HIM ON THE OBJECTION DATED 2.11.2010. EXT.R1(e) TRUE COPY OF THE WRITTEN STATEMENT DATED 10.3.2011 IN O.S.NO.404 OF 2010. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1662 OF 2011 O ------------------------------------------------------ Dated this the 14th day of June, 2011 JUDGMENT The petitioner filed O.S.No.404 of 2010 on the file of the Court of the Munsiff of Thaliparamba against the respondent for permanent prohibitory injunction restraining the defendant from closing the gate installed at the beginning of plaint 'B' schedule road which leads to the plaint 'A' schedule property belonging to the plaintiff. The petitioner applied for temporary injunction as per I.A.No.2528 of 2010. The Commissioner appointed by the Court filed a report and plan. The trial court dismissed the application for temporary injunction as per Ext.P2 order dated 6.11.2010. The trial court did not think it fit to grant the relief of temporary injunction in the light of the facts reported by the Commissioner. The petitioner filed C.M.A.No.42 of 2010 challenging the order of the trial court in I.A.No.2528 of 2010. The Appellate Court held thus: “4. Exts.C1, C2 clearly speaks about the existence of a pathway. This is the only pathway to the properties of plaintiff. The width of the road alone is O.P.(C) NO.1662 OF 2011 :: 2 :: now in dispute. That can be decided after full fledged trial. But the present nature and lie of B schedule is to be maintained. The lower court did not consider any of those aspects and dismissed the Interlocutory Application on some flimsy grounds. Hence the order passed by the lower court is to be set aside. In the result, C.M.A. is allowed and the order of the Munsiff's Court, Taliparamba in I.A.No.2528/2010 in O.S.No.404/2010 is hereby set aside and I.A. allowed and the defendant is restrained from reducing the width of B schedule pathway and noted by the commissioner and causing any obstruction to the user of the same by the appellant. But it is made clear that this order is not a licence to the appellant to remove gate installed by the respondent and to use it as a motorable pathway. The parties will bear their respective costs.” 2. The petitioner/plaintiff challenges that part of the judgment of the lower Appellate Court by which the petitioner is not granted temporary injunction for the user of the way as a motorable pathway. 3. Heard the learned counsel appearing for the petitioner and the respondent in detail. The counsel referred to the pleadings, the Commissioner's report and plan. Certain suggestions also emerged O.P.(C) NO.1662 OF 2011 :: 3 :: during the course of arguments. The counsel got instructions from the parties with respect to the same. 4. Learned counsel for the petitioner submitted that the petitioner is a cardiac patient and he had undergone a cardiac surgery. It is stated that his mother is aged 90 years. It is also submitted that the gate is locked and therefore, the petitioner and his family members are not in a position to take the vehicles to their house even in an emergent situation to take somebody to hospital. 5. Learned counsel for the respondent submitted that the petitioner does not own a car or any other four wheeler and it is not necessary to take vehicles through the plaint 'B' schedule property. The counsel also submitted that a one metre width pathway is left on the western side of the gate so that there is no impediment for the petitioner to have ingress and egress to his residential house. The counsel for the respondent further submitted that in case of emergency, the respondent is prepared to open the gate for the petitioner for taking vehicles to the house of the petitioner. It is submitted that even a phone call is sufficient and the respondent would not refuse to open the gate in such circumstances. The O.P.(C) NO.1662 OF 2011 :: 4 :: counsel for the respondent, however, submitted that this facility may not be misused by the petitioner causing inconvenience to the respondent. The submission made by the learned counsel for the respondent is recorded. The learned counsel appearing for the petitioner submitted that the petitioner will make use of this facility only when it is absolutely needed and that it will never be misused. Accordingly, the Original Petition is disposed of recording the aforesaid undertaking made by the respondent and also the undertaking made by the petitioner. It is also submitted by the counsel on either side that their respective parties will never create any situation for a dispute in the matter of implementation of the suggestions made by the respective parties. (K.T.SANKARAN) Judge ahz/