IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 OP(C).No. 3179 of 2011(O) ------------------------- CMA.28/2011 of ADDL.DISTRICT COURT-I,MAVELIKKARA .................... PETITIONER/1ST CR.PETITIONER - APPELLANT ------------------------------------------------------------ NUJUMUDEEN, S/O.USMANKUTTY, AGED 46 YEARS, ALUMOOTTIL HOUSE, CHERAVALLI MURI, KAYAMKULAM P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.S.JAMES VINCENT RESPONDENTS/ PETITIONERS & CR.PETITIONERS 2 TO 5, PLAINTIFF & DEFENDANTS 2 TO 5 ------------------------------------------------------------- 1. R.V.SURESH KUMAR, S/O.RAGHAVA PANICKER, AGED 53, FROM USHA BHAVAN, CHINGOLI VILLAGE, NOW RESIDING AT 'DEVASRI', NO.S-7/774-B, LAKESIDE APARTMENT, THEVALLY P.O., KOLLAM DISTRICT. 2. RAJAMMA, W/O.KARUNAKARAN, AGED 71, ULLAS BHAVAN, CHIRAKKADAVOM MURI, KAYAMKULAM VILLAGE & P.O., NOW RESIDING AT KULAKKATTIL HOUSE, MCD - 13/395, MANARKADU P.O., KOTTAYAM, PIN - 686 019. 3. LIISA, D/O.RAJAMMA, AGED 49, RESIDING AT -DO- 4. K.SANTHOSH, S/O.KARUNAKARAN, AGED 47 YEARS, -DO- 5. K.ULLAS, S/O.KARUNAKARAN, AGED 43 YEARS, -DO- ADV. SRI.S.CHANDRASENAN FOR R1 SRI.A.K.ABDUL AZEEZ FOR R2-5 SRI.T.K.SASINDRAN FOR R2-5 SRI.RENJIT GEORGE FOR R2-5 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2011, ALONG WITH OPC NO. 3725 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3179 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P-1 TRUE COPY ORDER NO.C.3-11595/10/K.DIS DT.15-12-2010 ISSUED BY THE CHIEF TOWN PLANNER, TRIVANDRUM. EXT.P-2 TRUE COPY OF BUILDING PERMIT NO.545/10-11 DATED 27-01-2011 ISSUED BY THE KAYAMKULAM MUNICIPALITY. EXT.P-3 TRUE COPY OF INJUNCTION ON I.A.2553/2010 IN OS 346/10 DT.27-05-2011 OF THE MUNSIFF'S COURT, KAYAMKULAM. EXT.P-4 TRUE COPY OF THE PLAINT IN O.S.346/2010 OF -DO- EXT.P-5 TRUE COPY OF THE DECREE IN O.S 111/96 OF -DO- EXT.P-6 TRUE COPY OF I.A.1178/2011 FILED IN THE TRIAL COURT BY THE PETITIONER FOR THE ISSUANCE OF A COMMISSION. EXT.P-7 TRUE COPY OF PLAINTIFF'S OBJECTIONS DT.21-06-2011 EXT.P-8 TRUE COPY OF THE COMMISSION REPORT AND PLAN FILED ON 04-04-2011 IN O.S. 346/2010 EXT.P-9 TRUE COPY OF MEMORANDUM OF APPEAL DT.13-06-2011 IN CMA 28/11 OF THE ADDL.DISTRICT COURT, MAVELIKKARA. EXT.P-10 TRUE COPY OF THE PETITION FILED BY THE IST RESPONDENT ON 01-06-2011 IN OS 346/10 FOR THE PETITIONER'S PROSECUTION UNDER ORDER XXXIX, RULE 2-A, CPC EXT.P-11 TRUE COPY OF COMMISSION REPORT, DT.30-6-2011 EXT.P-12 TRUE COPY OF I.A 523/11 FILED BY 1ST RESPONDENT IN CMA 28/2011 of ISSUING A SECOND COMMISSION. EXT.P-13 TRUE COPY A COMMISSION REPORT DT.18-8-2011 EXT.P-14 TRUE COPY OF SCHEDULE OF WITNESS DT.27-9-2011 EXT.P-15 CERTIFIED TRUE COPY OF B-DAIRY IN CMA 28/2011 RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).Nos.3179 and 3725 of 2011 --------------------------------------- Dated this 01st day of December, 2011 JUDGMENT These original petitions concern C.M.A.No.28 of 2011 pending before the learned Additional District Judge, Mavelikkara which in turn arises from Ext.P3, order of temporary injunction passed by the learned Munsiff, Kayamkulam in O.P(C).No.3179 of 2011 on I.A.No.2553 of 2010 in O.S.No.346 of 2010. 2. O.S.No.346 of 2010 is a suit filed by the first respondent for a decree for prohibitory injunction to restrain petitioner and defendants 2 to 5 from trespassing into the property described in the plaint schedule and making constructions therein. First respondent filed I.A.No.2553 of 2010 in that suit for an order of temporary injunction to that effect. Petitioner and defendants 2 to 5 preferred objection to the said application. That culminated in Ext.P3, order in O.P(C).No.3179 of 2011. Petitioner challenged that order in C.M.A.No.28 of 2011 while as I am told, defendants 2 to 5 have preferred C.M.A.No.34 of 2011 in challenge of the same order. In the meantime, first respondent had filed application under Order XXXIX, Rule 2A of the Code of Civil Procedure (for short, “the Code”) in the trial O.P(C).Nos.3179 and 3725 of 2011 -: 2 :- court to prosecute petitioner for alleged disobeyance of Ext.P3, order. Learned Additional District Judge called for the records of trial court for disposal of the C.M appeals and the application for prosecution was also transmitted to the learned Additional District Judge along with the other records. It would appear that learned Additional District Judge wanted to proceed with the application for prosecution and in that regard, to examine the advocate commissioner who submitted report in the matter of alleged disobeyance. At that stage petitioner approached this Court with O.P(C).No.3179 of 2011. This Court passed interim order directing that learned Additional District Judge shall not proceed with examination of the advocate commissioner with respect to proof of application under Order XXXIX, Rule 2A of the Code. That order was being extended thereafter. 3. In the meantime petitioner filed I.A.Nos.805 and 806 of 2011 in C.M.A.No.28 of 2011, the former to send the LC records to the Court of learned Munsiff and the latter, to raise certain additional grounds of attack to Ext.P3, order in C.M.A.No.28 of 2011. Petitioner sought the records to be send to the learned Munsiff since he had filed application for amendment of written statement to incorporate additional contentions and for O.P(C).Nos.3179 and 3725 of 2011 -: 3 :- disposal of that application records of the case were necessary. Since I.A.Nos.805 and 806 of 2011 were not taken up as petitioner submits, he filed Ext.P10, application in O.P(C). No.3725 of 2011 (I.A.No.823 of 2011) for early posting of C.M.A.No.28 of 2011. That application, I am told is pending. Concerning I.A.Nos.805 and 806 of 2011 petitioner has filed O.P (C).No.3725 of 2011. 4. So far as the application for prosecution of petitioner filed by the first respondent in the trial court under Order XXXIX, Rule 2A of the Code is concerned, question of learned Additional District Judge while disposing of the C.M appeals enquiring into the disobeyance if any does not arise. As it is the order of trial court which is allegedly disobeyed, it is for the trial court to dispose of the application for prosecution. Hence learned Additional District Judge cannot, in any way proceed with the application under Order XXXIX, Rule 2A of the Code preferred by the first respondent in the trial court. 5. So far as transmitting records to the trial court as prayed for in I.A.No.805 of 2011 in C.M.A.No.28 of 2011 is concerned, that is a matter which learned Additional District Judge has to decide, whether it is possible to dispose of the C.M O.P(C).Nos.3179 and 3725 of 2011 -: 4 :- appeals based on photocopies of the relevant documents which are admitted by both sides or whether the original records are necessary for disposal of the C.M appeals. At any rate, the disposal of C.M appeals cannot be prolonged. 6. So far as I.A.No.806 of 2011 filed by petitioner in C.M.A.No.28 of 2011 to raise additional grounds in the C.M appeal is concerned, learned Additional District Judge has to decide that application before the CM appeal is disposed of as provided under law. Resultantly these original petitions are disposed of as follows: (i) It is directed that learned District Judge is not required to conduct any enquiry into the alleged disobeyance of the order of injunction of the trial court as pleaded by the first respondent/plaintiff in the application he has preferred in the trial court under Order XXXIX, Rule 2A of the Code or dispose of the same. That exercise has to be done by the trial court. (ii) So far as I.A.No.805 of 2011 in C.M.A.No.28 of 2011 is concerned, learned District Judge may consider whether based on the photocopies of relevant records admitted by both sides the C.M appeal could be disposed of. If so, it is open to the learned District Judge to transmit O.P(C).Nos.3179 and 3725 of 2011 -: 5 :- the original records to the trial court. If not, learned District Judge shall transmit the original records to the trial court after disposal of the C.M appeals. (iii) Learned District Judge is directed to dispose of I.A.No.806 of 2011 in C.M.A.No.28 of 2011 (whereby petitioner has requested to raise additional grounds in C.M.A.No.28 of 2011) as early as possible, at any rate before the C.M appeals are disposed of. (iv) Learned District Judge shall expedite disposal of the C.M appeals of course after hearing both sides. (THOMAS P. JOSEPH, JUDGE) Sbna/-