IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 5209 of 2010(O) ------------------------- CMA.119/2009 of DISTRICT COURT, PALAKKAD OS.337/2009 of MUNSIFF COURT, CHITTUR (IA 2655/2009) .................... PETITIONER/APPELLANT/RESPONDENT/DEFENDANT: --------------- CHANDRAN,S/O.GOPALAN,ORAVAKODE, NENMARA.PO,CHITTUR TALUK,CHITTUR TALUK, PALAKKAD DISTRICT,PIN:678 508. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS/PETITIONERS/PLAINTIFFS: --------------- 1. STANLEY,S/O.RAPHEL,ORAVAKODE, NENMARA.P.O,CHITTUR TALUK,PALAKKAD DISTRICT, PIN:678 508. 2. JAMES,S/O.RAPHEL,-DO- -DO- ADV. SRI.A.K.MADHAVAN UNNI FOR R1 & 2 SRI.S.RAMACHANDRAN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.5209 OF 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.220/2007 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P2 : COMMISSION REPORT AND PLAN SUBMITTED BY MS.SHAILA S, THE ADVOCATE COMMISSIONER IN O.S.No.220 OF 2007 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P3 : VILLAGE SURVEY SKETCH IN RESPECT OF THE DISPUTED PATHWAY AND THE PETITIONER'S PROPERTY EXHIBIT P4 : COMMISSION REPORT, SUBMITTED BY SRI. V SATHEESH, ADVOCATE COMMISSIONER IN O.S.No.220 OF 2007 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P5 : SURVEY SKETCH SUBMITTED ALONG WITH EXT.P4 EXHIBIT P6 : JUDGMENT DTD.29.06.2009 PASSED IN O.S.No.220 OF 2007 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P7 : PLAINT IN O.S.No.337 OF 2009 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P8 : WRITTEN STATEMENT FILED IN EXT.P7 SUIT BY THE DEFENDANT EXHIBIT P9 : I.A.No.2655 IN O.S.No.337 OF 2009 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P10 : OBJECTION FILED TO EXT.P9 EXHIBIT P11 : COMMISSION REPORT DTD.21-08-2009 FILED IN O.S.No.337 OF 2009 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P12 : ORDER DTD.05.11.2009 PASSED IN I.A.No.2655 IN O.S.No.337 OF 2009 ON THE FILE OF MUNSIFF'S COURT, CHITTUR EXHIBIT P13 : JUDGMENT DTD.22.01.2010 PASSED IN C.M.A.NO.119 OF 2009 ON THE FILE OF DISTRICT COURT, PALAKKAD RESPONDENTS' EXHIBITS : NIL True copy P.A. To Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.5209 of 2010 --------------------------------------- Dated this 16th day of June, 2010 JUDGMENT This writ petition is filed by the defendant in O.S.No.337 of 2009 of the court of learned Munsiff, Chittur. That was a suit filed by the respondents on 12-08-2009 claiming prohibitory injunction in respect of plaint B schedule way. In short contention of respondents is that petitioner is attempting to reduce width of plaint B schedule pathway. In that suit, respondent filed I.A.No.2655 of 2009 for an order of mandatory injunction alleging that petitioner has caused obstruction to the said pathway. That application was allowed by learned Munsiff which has been confirmed by the appellate court in C.M.A.No.119 of 2009. Hence this writ petition at the instance of defendant. Petitioner has filed O.S.No.220 of 2007 against respondents seeking decree for prohibitory injunction against respondents demolishing the northern fence and trespassing into the property of petitioner and widening the disputed pathway. Respondents contended that petitioner had surrendered space having width of one foot on receiving consideration of Rs.5,000/- for widening the existing pathway and accordingly the pathway was widened into a way W.P.C.No.5209 OF 2010 : 2 : having width of 3.7 meters. Later, petitioner trespassed into the said pathway and put up a new fence. In O.S.No.220 of 2007 the Advocate Commissioner inspected properties and submitted reports. On evidence learned Munsiff found in O.S.No.220 of 2007 that width of the disputed pathway was 3.7 meters and held that petitioner is not entitled to the reliefs prayed for in that suit. That suit ended in dismissal. That judgment and decree are under challenge in A.S.No.298 of 2009 which is pending consideration before learned District Judge, Palakkad. In the meantime, after dismissal of O.S.No.220 of 2007 petitioner obtained an order for maintenance of status quo till filing of the appeal as per order dated 13-07-2009 on I.A.No.1638 of 2009. Learned District Judge, while dealing with A.S.No.298 of 2009 has also issued an order for maintenance of status quo. While so, respondent filed O.S.No.337 of 2009 for reliefs as aforesaid wherein the impugned order was passed on I.A.No.2655 of 2009 which has been confirmed in C.M.A.No.119 of 2009. 2. Order on I.A.No.2655 of 2009 directs petitioner to remove obstruction allegedly caused in the disputed pathway. The dispute between the parties is as regards the width of pathway, while petitioner maintains that it is 2.6meters respondents assert that as 3.7 meters as found in O.S.No.220 of 2007. I stated, that W.P.C.No.5209 OF 2010 : 3 : dispute is pending decision of the learned District Judge in A.S.No.298 of 2009. 3. I have heard learned counsel on both sides. Learned counsel for petitioner has a contention that the order of mandatory injunction disregarding the fact that the real controversy is under consideration of the appellate court in A.S.No.298 of 2009 is not sustainable. Learned counsel for petitioner asserts that trial of O.S.No.337 of 2009 has been stayed pending disposal of A.S.No.298 of 2009 as per order on I.A.No.2805 of 2009 while learned counsel for respondents with equal vehemence assert that the application for stay under Section 10 of the Code of Civil Procedure is still pending. Whatever that be, it is not disputed by both sides that the controversy involved in both the case is as to the width of disputed pathway. That dispute is pending consideration in A.S.No.298 of 2009 in a previously instituted suit. In such a situation, it is only proper that order on I.A.No.2655 of 2009 is kept in abeyance until learned District Judge disposed of A.S.No.298 of 2009 and made subject to that decision. 4. Learned counsel for respondents made a complaint that even the existing pathway has been obstructed by the petitioner. So far as that submission of learned counsel is concerned, petitioner is bound to remove whatever obstruction fi any found in W.P.C.No.5209 OF 2010 : 4 : the pathway having width of 2.6 meters from the existing northern boundary of property of petitioner. Resultantly, this writ petition is disposed of in the following lines: (i) Execution of the order passed on I.A.No.2655 of 2009 in O.S.No.337 of 2009 is made subject to the result of A.S.No.298 of 2009. That order will remain in abeyance till the disposal of the said appeal. In case that appeal is dismissed as against the petitioner it will be open to the learned Munsiff trying O.S.No.337 of 2009 to execute order on I.A.No.2655 of 2009 subject to the ultimate result of that suit. (ii) Petitioner is directed to remove the obstruction if any from the pathway at a width of 2.6meters from the existing northern boundary of property of petitioner. He is also directed not to cause any obstruction in the said portion of the pathway. Removal of obstruction if any from the said portion of the pathway shall be done by the petitioner within two weeks from this W.P.C.No.5209 OF 2010 : 5 : day failing which respondents can move the trial court for removal of the obstruction from the said portion of the pathway. (iii) Parties hereto or any of them can request learned District judge for expeditious disposal of A.S.No.298 of 2009 and if any such request is made learned District Judge shall consider the difficulties expressed by respondents and pass appropriate orders for expeditious disposal of the appeal. (THOMAS P JOSEPH, JUDGE) Sbna/-