IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 14948 of 2009(O) -------------------------- AGAINST THE ORDER IN IA.1997 IN OS.2018/2007 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- MATHEW, S/O.VARGHESE, WEST CLIFF, YMRA, NANTHANCODE, TRIVANDRUM REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.RAMESH SUBRAMONIUM, GENERAL MANAGER, MVS SOFTWARE CONSULTING (P)LTD.,THIRUVANANTHAPURAM BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): --------------- DR.T.K.KOSHY, S/O.KOSHY, TC 11/1573, YAA JUNCTION, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2009 ALONGWITH W.P.(C).NO.14958/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NOS.14948 & 14958 OF 2009 (O) ----------------------------------- Dated this the 2nd day of June, 2009 J U D G M E N T These two writ petitions are filed by the defendant in O.S.No.2018/2007 on the file of the Munsiff's Court, Thiruvananthapuram. The respondent, as plaintiff filed the above suit seeking a prohibitory injunction to restrain the defendant from making any constructions encroaching upon the plaint schedule property, which is stated to be a pathway. With the suit, the plaintiff moved an application for interim injunction till the disposal of the suit and it was initially granted as prayed for by the plaintiff. Subsequently, after hearing the petitioner/defendant, the court modified that injunction by Ext.P3 order permitting the defendant to continue with the construction, demolishing the compound wall touching his property for the purpose of that construction. Later, the plaintiff moved an application for amendment of the suit alleging that encroaching upon the W.P.(C).NOS.14948 & 14958 /2009 2 pathway, the construction had been made by the defendant and portion of the compound wall had been reduced into the possession of the defendant. Plaintiff sought for a decree of mandatory injunction to remove the illegal construction allegedly made by the defendant. After hearing both sides, the learned Munsiff allowed that application. The plaintiff also moved an application for appointing an Advocate Commissioner to determine the area of the pathway trespassed upon and reduced into possession by the defendant. Petitioner has filed W.P.(C).No.14948/2009 against Ext.P6 order passed by the learned Munsiff, allowing the amendment application moved by the plaintiff. The other writ petition, W.P.(C).No.14958/2009 has been filed against the order appointing an Advocate Commissioner as desired by the plaintiff in the suit. 2. I heard the learned counsel for the petitioner. Inviting my attention to the previous order passed by the learned Munsiff, produced as Ext.P3 in W.P.(C). No.14948/2009, the learned counsel for the petitioner W.P.(C).NOS.14948 & 14958 /2009 3 submitted that the demolition of the compound wall for the purpose of construction was made with the sanction of the court and the respondent/plaintiff, who has not challenged that order is estopped from questioning the merit of that order by way of a proposed amendment brought in the plaint by which, he has sought for a decree of mandatory injunction for removal of the compound wall newly put up. After having heard the learned counsel at length and taking note of the facts and circumstances involved in the case, I find the modification of the injunction order passed by the learned Munsiff under Ext.P3 has no decisive effect or significance. As far as the amendment application and Commission application moved by the plaintiff is concerned, the case advanced by the plaintiff, it appears, is that pursuant to Ext.P3 order when construction was put up by the defendant, it was so done trespassing upon the plaint schedule pathway and reducing portions of it into the possession of the defendant. When he has such a case, necessarily, an amendment as sought for by him for the relief of mandatory injunction as was done in the present case cannot at all be found fault with. I do not find W.P.(C).NOS.14948 & 14958 /2009 4 any impropriety or illegality in the order passed by the learned Munsiff allowing that amendment application and also the Commission application moved by the plaintiff. Writ petitions are devoid of any merit and they are dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009