IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 OP(C).No. 1426 of 2011(O) -------------------------------------- OS.NO. 282/2009 of MUNSIFF COURT, MANJERI .................... PETITIONER -------------------- 1. SMT.SNEHALATHA, AGED 50 YEARS, W/O.BALACHANDRA MENON,ADANCHERY HOUSE,CHEROOR, THIRURANGADI. 2. SMT.SEEMA,D/O.BALACHANDRA MENON, ADANCHERYY HOUSE,CHEROOR,THIRURANGADI. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): --------------------------- MOHAMMED,S/O.AHAMMEDKUTTY,KANNETHU HOUSE,CHEROOR,THIRURANGADI,MALAPPURAM DISTRICT, REP.BY POWER OF ATTORNEY HOLDER SRI.ABDUL BASHA, S/O.MAMMY KOYA,NALAKATH HOUSE,CHEROOR, THIRURANGADI, PIN- 676 314. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.E.M.UNNIKRISHNAN (MANJERI) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts K.T.SANKARAN, J. ------------------------------ O.P(C)No.1426 OF 2011 ------------------------------ Dated this the 7th day of June, 2011 JUDGMENT Though notice was served, there is no appearance for the respondent. 2. The petitioners are the defendants in O.S.No.282 of 2009 on the file of the Court of the Munsiff of Manjeri. The suit was filed by the respondent for an injunction restraining the defendants from entering into the plaint B schedule pathway, from constructing a compound wall in the pathway or from obstructing the user of the pathway by the plaintiff. It is stated that on 18.11.2009, the date on which the suit was filed, an order of status quo was passed by the trial court. It is stated that the Commissioner inspected the property twice and reports were filed on 20.11.2009 and 31.5.2010. 3. According to the petitioners/defendants, the O.P(C)No.1426 OF 2011 2 pathway on the northern side of their property is having a width of 2.70 metres as noted by the Commissioner in the plan. The defendants contended that there was an old mud wall on the northern side of their property, a portion of which was demolished. The defendants filed I.A.No.1770 of 2009 for permission to construct a compound wall on the northern side of their property in continuation of the mud wall in existence after retaining the width of the pathway as 9 feet. The court below passed an order dated 26.11.2010 dismissing I.A.No.1770 of 2009 on the ground that there is an order to maintain the status quo and that there are no compelling circumstances to alter that order. 4. It is stated in the affidavit accompanying I.A.No.1770 of 2009 that since there is no compound wall on the northern side of the property of the defendants, cattle used to enter into the property. It is also stated that in the house in the property of the defendants, the inmates are only ladies. It is submitted by the learned counsel for O.P(C)No.1426 OF 2011 3 the petitioners that the plaintiff has no case that the width of the pathway as noted by the Commissioner is not correct. 5. Taking into account the facts and circumstances of the case, I am of the view that the court below did not properly consider the averments in I.A.No.1770 of 2009 and the necessity mentioned for constructing a compound wall on the northern side of the property of the defendants. Accordingly, the order dated 26.11.2010 is set aside and I.A.No.1770 of 2009 is remanded to the court below for fresh consideration and disposal. It is made clear that I have not expressed any view on the merits of the prayer in I.A.No.1770 of 2009. The court below shall dispose of I.A.No.1770 of 2009 within a period of two months. K.T.SANKARAN, JUDGE. cms