IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 13868 of 2010(O) -------------------------- AGAINST THE ORDER DATED 01/03/ 2010 IN I.A 1721/2010 IA 1723/2010 IN OS.268/2010 of PRL.MUNSIFF COURT, ERNAKULAM .................... PETITIONER: --------------- NIMMY FRANCIS ALIAS NIMMY ROZARIO, W/O.ROZARIO, KALOOR VEETIL, KOCHI-17, PRESENTLY RESIDING AT 226/5, ROHINI FLATS, ANNA NAGAR WEST, CHENNAI-600 101. BY ADV. SRI.V.L.SHENOY SRI.L.JAYAWANTH SRI.S.R.SREEJITH RESPONDENTS: --------------- 1. P.V.S.MEMORIAL HOSPITAL LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR,P.V.CHANDRAN, KALOOR, ERNAKULAM,KOCHI-682 026. 2. THE EXECUTIVE DIRECTOR, P.V.S.MEMORIAL HOSPITAL LIMITED, SMT.P.V.MINI, D/O.P.V.CHANDRAN,C.C.NO.48/59C,DEIVAVATHA, OPPOSITE CHOICE PARK,ELAMAKKARA,ERNAKULAM, KOCHI-682 026. ADV. SRI.MILLU DANDAPANI FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX W.P.C.No.13868 OF 2010 2 PETITIONER'S EXHIBITS: EXHIBIT P1 - PLAINT DTD. 01-03-2010 ON THE FILE OF PRINCIPAL MUNSIFF, ERNAKULAM EXHIBIT P2 - I.A.1721 OF 2010 DTD. 01-03-2010 ON THE FILE OF PRINCIPAL MUNSIFF, ERNAKULAM EXHIBIT P3 - I.A.1723/10 DTD. 01-03-2010 ON THE FILE OF PRINCIPAL MUNSIFF, ERNAKULAM EXHIBIT P4 - COMMISSION REPORT PREPARED BY ADVOCATE COMMISSIONER DTD. 16-03-2010 ON THE FILE OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM EXHIBIT P5 - COUNTER AFFIDAVIT FILED BY the RESPONDENTS DTD.24-03-2010 ON THE FILE OF PRINCIPAL MUNSIFF'S COURT AT ERNAKULAM EXHIBIT P6 - ORDER PASSED BY the LEARNED MUNSIFF IN I.A.1723/10 DTD.30-03-2010. RESPONDENT'S EXHIBITS - NIL THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.13868 of 2010 --------------------------------------- Dated this 19th day of May, 2010 JUDGMENT Petitioner before me is the plaintiff in O.S.No.268 of 2010 and seeks a writ of mandamus or any other appropriate writ or direction to quash Ext.P6, order passed by the learned Principal Munsiff, Ernakulam on I.A.No.1723 of 2010 in O.S.No.268 of 2010. That is a suit claiming lateral support for plaint A and B schedule properties belonging to the petitioner from the C schedule belonging to the respondent/defendant for prohibitory injunction against obstructing free flow of water through the canal and mandatory injunction for removal of construction which according to the petitioner is illegally made in plaint C schedule. The suit was filed on 03-03-2010 and along with that, petitioner filed Ext.P3, application No.1723 of 2010 for an order of temporary injunction against construction of treatment/sewage plant in plaint C schedule and meddling with the right of lateral support for plaint A and B schedule properties. There was also Ext.P2 application for issue of commission to inspect the property and report on the matters requested therein. Learned Munsiff while appointing the advocate commissioner had directed him to give notice to the respondent W.P.C.No.13868 of 2010 : 2 : before inspection. Commissioner inspected the property on 05-03- 2010. There was no interim order of injunction passed on Ext.P3 application and notice was ordered on that application. Respondent appeared on 22-03-2010 and filed its counter on 24-03- 2010. In the meantime the advocate commissioner submitted Ext.P4, report. Learned Munsiff after hearing both sides passed Ext.P6 order dismissing I.A.No.1723 of 2010. That order is requested to be quashed in this proceeding. Learned counsel for petitioner submits that though statutory remedy is to prefer an appeal under Order 43 Rule 1 of the Code of Civil Procedure (for short, “the Code”) as gross injustice is done to the petitioner this court is competent to exercise its power under Article 227 of the Constitution as held in John V.O. Vs. M/s. Cathelic Cyrian Bank Ltd. (2009 (1) KHC 337). It is also submitted by learned counsel for petitioner that in the course of proceeding in the courts below counsel for respondent had undertaken that lateral support lost for plaint A and B schedules will be restored but, that undertaking has not been complied. According to the learned counsel for petitioner, respondent might at any time start the treatment/sewage plant in the C schedule. The further complaint of learned counsel is that in the absence of petitioner from the suit property, respondents are dumping plastic and other waste materials in plaint A and B W.P.C.No.13868 of 2010 : 3 : schedules and even burning the same causing inconvenience to the petitioner. Learned counsel for respondent refuted those allegations and contended that what was undertaken by the respondent in the courts below was that in case it is found that there is loss of lateral support that will be restored by the respondent. But, such a situation has not arisen as of now. According to the learned counsel petitioner, if aggrieved by Ext.P6 is to challenge the same in appeal as per Order 43 Rule 1 of the Code. There in no violation of any building rule as contended by petitioner . 2. It is true that in John V.O. Vs. M/s. Cathelic Cyrian Bank Ltd. (supra) this court said that notwithstanding that a remedy by way of appeal is provided, it is open to this court to exercise its power under Article 226 and 227 of the Constitution if the impugned order was passed in utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. But, the Supreme Court in Abdul Rasak Vs. Mangesh Rajaram Wagle (2010(1) KLT SN 33 (Case No.42) SC) has stated the circumstances under which power under Article 226 of the Constitution or even the supervisory jurisdiction under Article 227 can be exercised in relation to the order passed by the civil court. It is stated that when the subordinate court has W.P.C.No.13868 of 2010 : 4 : assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction. Here, as seen from Ext.P6, learned Munsiff has referred to the various circumstances to hold that interim injunction as prayed for is not to be allowed. Going by the decision of the apex court referred above, I am persuaded to think that it is a fit case where petitioner has to invoke the statutory remedy against Ext.P6. 3. Petitioner has an apprehension that at any point of time respondent might start the treatment/sewage plant in the building constructed in the plaint C schedule. Learned counsel for respondent would submit that it requires further steps also for starting the treatment/sewage plant and that at any rate the treatment/sewage plant will not start functioning within a week from this day. The submission of learned counsel is recorded. 4. In the light of what I have stated above, interference with the impugned order under Article 226 or 227 of the Constitution is not warranted. Petitioner has to challenge Ext.P6 before the appellate court. I leave it to the court concerned to W.P.C.No.13868 of 2010 : 5 : decide whether Ext.P6 order is legally sustainable either on facts or law as contended by counsel on both sides. In case any such appeal is preferred, appellate court shall dispose of the same untrammeled by any of the observations made in this judgment or, the statement of the learned counsel for respondent as to the functioning of the treatment/sewage plant which I have recorded. With the above direction the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-