IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 10795 of 2010(O) --------------------------------------- (OS. NO.464/2009 OF PRL.MUNSIFF'S COURT,THIRUVANANTHAPURAM) .................... PETITIONER: ------------------- M.RAVEENDRAN, AGED 68, S/O.LATE MADHAVAN, RESIDING AT C-44/950,KALOOR P.O. COCHIN -17. BY ADVS. MR.SAJEEV.T.P, MR.SHAJI P.CHALY, MR.P.A.JALEEL, MR.A.G.TISSARANT. RESPONDENT: ---------------------- S.K.JAYACHANDRAN, AGED 58, S/O. KRISHNAN NAIR, KUNJU VEEDU, T.C.V/2292,JAWAHAR NAGAR P.O., NEAR KADAPATHALA LANE, PIPPINMOODU, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADVS. MR.S.V.PREMAKUMARAN NAIR, MR.R.T.PRADEEP. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 10795 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2010. JUDGMENT Aggrieved by the order dated 23.3.2010 in I.A. 331 of 200 in I.A. 5774 of 2009 in O.S. 464 of 2009, petitioner before the court below has come up with this writ petition. 2. Petitioner instituted a suit against the respondent as O.S.464 of 2009 before the Munsiff's Court, Thiruvananthapuram seeking a declaration of easement by prescription and consequential reliefs over B schedule pathway. The plaintiff in the suit alleged that he has been using the way for a long time without any obstruction and objection from anybody. Along with the suit the plaintiff moved I.A. 2314 of 2009 and an ad-interim injunction was granted in favour of the petitioner. The said order continues to be in force even as on today. It is stated that the order was communicated to the respondent on 8.3.2009. A WPC. 10795/2010. 2 commission was taken out and the Commissioner had visited the property on 8.3.2009 and filed a report. 3. The complaint of the petitioner was that after receiving the order of injunction, the respondent wilfully flouted the same and did acts disobeying the order. It is alleged that he had put up gate, compound wall etc., thereby preventing the access of the plaintiff to the pathway. That necessitated the petitioner to file I.A. 5774 of 2009 seeking court's aid for removal of the obstruction caused by the respondent. A commission was again taken out and the commissioner reported that obstructions were seen on the pathway. The court below after comparing the two commission reports found that there was dis-obeyance of the interim order and obstructions were put up along the pathway. Therefore Ext.P6 order was passed. In the said order it is stated as follows: “In the result, the application is allowed by directing the respondent/defendant to remove the gate and other obstructions caused to the 'B' schedule way as reported in Ext.C2 within one WPC. 10795/2010. 3 month from this date failing which the petitioner is entitled to get it removed through the process of court.” 4. Since the respondent did not comply with the directions in the said order, the petitioner was left with no option but to approach the court below for appointing an Amin with the aid of police to implement Ext.P6 order. For that purpose the petitioner has filed I.A. 331 of 2010. 5. In I.A. 331 of 2010 they pointed out the entire details and also that the obstructions have not been removed by the respondent. Therefore, going by Ext.P6 order they are entitled to remove the obstruction and they want assistance of Amin and police. 6. The respondent resisted the petition. One of the contentions was that against Ext.P6 order he has filed a C.M.A. and that is pending. Unfortunately, he would say that, the stay petition has not been heard and therefore the order in the I.A. has not become final. WPC. 10795/2010. 4 7. The court below by a strange order directed that the gate need not be removed before a detailed enquiry is conducted and the counter petitioner shall keep the gate unlocked. It is that order which is assailed. 8. Both sides were elaborately heard. 9. Learned counsel appearing for the petitioner pointed out that the impugned order is clearly illegal and bad on facts and in law. The court below on further evaluation of the entire materials before it found that there was obstruction caused to the pathway inspite of the order issued by the court below. It was on that basis that the court below directed the respondent to remove the gate and other obstructions, failing which the petitioner is entitled to do so and that order was sought to be implemented. The impugned order was passed actually reviewing the earlier order and almost nullifying the earlier order passed by the same court. 10. Learned counsel appearing for the respondent on the other hand pointed out that there is another suit as WPC. 10795/2010. 5 O.S. 501 of 2009 filed by four persons including himself against the petitioner herein and there is an interim order against him. It is also pointed out that the order in I.A. 5774 of 2009 has not become final since the C.M.A. is pending. 11. None of the contentions are tenable. Ext.P6 order is very specific and clear. That order was passed after consideration of the two commission reports and the latter commission report clearly showed that there was obstruction caused to the pathway inspite of an order against the respondent. The court below also found that it was the respondent, who was responsible for the causing of obstruction and there was an interim order that the obstruction be removed. The petitioner sought the help of the court in implementing the order as directed by the court below, then the court below almost reviewed the earlier order saying that the issue regarding the violation can be determined only after the enquiry. Such an order is quite unwarranted in the light of Ext.P6 order. In Ext.P6 order it WPC. 10795/2010. 6 was found that there was violation of the order of injunction and also that obstruction has been caused. 12. In the light of the categoric finding in Ext.P6, the court below has no right to go behind the order and almost nullify the said order. The issue has not been properly attended to by the court below and the court below has taken into consideration irrelevant aspects and omitted the relevant aspects. The order cannot be sustained. 13. Learned counsel for the respondent then pointed out the pendency of C.M.A. and the interlocutory application filed therein. If the respondent is so inclined, he may get appropriate orders from the appellate court. But that is not a ground to stay the implementation of Ext.P6 order. The fact that there is another suit pending and in which there is an order against the petitioner is also not a ground to keep Ext.P6 order in abeyance. Viewed from any angle, it is not possible to sustain the impugned order. In the result, this petition is allowed, the impugned order is set aside and the court below is directed to WPC. 10795/2010. 7 reconsider the matter as expeditiously as possible, at any rate within three weeks from the date of re-opening of the courts after after summer vacation. Learned counsel for the respondent expressed an apprehension that the appellate court, where CMA is pending, may be carried away by the observation made by this court. There is no substance in the above apprehension. But however it is made clear that the first appellate court shall dispose of the C.M.A. untramelled by any of the observations made by this court in this judgment. P. BHAVADASAN, JUDGE sb.