IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 OP(C).No. 2273 of 2011(O) ------------------ OS.461/2010 OF MUNSIFF COURT, NEDUMANGAD .................. PETITIONER'S / PLAINTIFFS : -------------------------------------------- 1. A.SALIM, AGED 48 YEARS, S/O.ABOOBACKER KUNJU, RASHEED MANZIL, CHAYAM, VITHURA VILLAGE, CHITTUVEETTU MURI, NEDUMANGAD TALUK, TRIVANDRUM. 2. SABEENA, AGED 39 YEARS, W/O.SALIM, RASHEED MANZIL, CHAYAM, VITHURA VILLAGE, CHITTUVEETTU MURI, NEDUMANGAD TALUK, TRIVANDRUM. BY ADV. SMT.KEERTHI SOLOMON RESPONDENTS / DEFENDANTS : ----------------------------------------------- 1. SABU, AGED ABOUT 41 YEARS, S/O.SHUNMUGHAN PILLAI, VAYAKKANCHIYIL VEEDU, ANAPPARA, VITHURA VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM. 2. BIJU, AGED ABOUT 43 YEARS, S/O.THIRUVATTAR SUBRAMANIAN PILLAI, VAYAKKANCHIYIL VEEDU, ANAPPARA, VITHURA VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM. 3. PONNAN, AGED ABOUT 56 YEARS, S/O.FATHERS NAME NOT KNOWN TO THE PETITIONER SUPERINTENDENT, MR.K.G.AJAYAN'S ESTATE, ANAPPARA, VITHURA VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM. 4. RAVI, AGED ABOUT 51 YEARS, S/O.FATHERS NAME NOT KNOWN TO THE PETITIONER SECRETARY, VITHURA CO-OPERATIVE SOCIETY, VITHURA VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM. ...2/- OP(C).No. 2273 of 2011(O) -2- 5. SHANMUGHAN PILLAI, AGED ABOUT 66 YEARS, S/O.MADAHAVAN PILLAI, VAYAKKANCHIYIL VEEDU, ANAPPARA, VITHURA VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM. R1, R2 & R5 BY ADVS. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ...3/- OP(C).No. 2273 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT DATED 15-06-2010. EXT.P2 : COPY OF THE COMMISSION REPORT DATED 11.08.2010. EXT.P3 : COPY OF THE ORDER DATED 22.12.2010 IN I.A. NO. 2504/2010 IN O.S NO. 461/2010. EXT.P3(a) : COPY OF THE ORDER DATED 22.12.2010 IN I.A. NO. 4409/2010 IN O.S NO. 461/2010. EXT.P4 : COPY OF THE I.A NO. 1679/2011 IN O.S. NO. 461/2010 DATED 01.02.2011. EXT.P5 : COPY OF THE PHOTOGRAPH TAKEN BY THE PETITIONERS. EXT.P6 : COPY OF THE ORDER IN I.A. NO. 1679/2011 IN O.S. NO. 461/2010 DATED 06.04.2011. EXT.P7 : COPY OF THE NEWS PAPER REPORTS DATED 29.05.2010 (MANGALAM, MATHRUBHOOMI). EXT.P7(a) : COPY OF THE NEWS PAPER REPORTS DATED 29.05.2010 (MANGALAM, MATHRUBHOOMI). EXT.P8 COPY OF THE REPORT DATED 24.04.2010. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2273 of 2011 ==================================== Dated this the 03rd day of November, 2011 J U D G M E N T Plaintiffs in O.S. No.461 of 2010 of the court of learned Principal Munsiff, Nedumangad are the petitioners before me aggrieved by Ext.P6, order dismissing Ex.P4, application filed by them to appoint an Amin to keep open the gate put up by the respondent across plaint C schedule way claimed by the petitioners as their only access to plaint A and B schedules. The suit was filed on 05.06.2010. Learned Munsiff passed Ext.P3, order on 22.12.2010 to maintain the status quo as reported by the Advocate Commissioner till disposal of the suit. Respondents were also directed to keep the gate unlocked. Petitioners filed Ext.P4, application to appoint the Amin to keep the gate open and remove the iron bar allegedly installed in front of the gate after filing of the suit. Petitioners alleged that after institution of the suit and Ext.P3, order, respondents have kept the gate closed and locked. On that application learned Munsiff passed Ext.P6, order. In the said order learned Munsiff observed that Ext.P3, order has not been modified and hence the court cannot appoint an Amin for a cause which is not allowed by the court. Learned Munsiff also O.P(C) No.2273 of 2011 -: 2 :- observed that the Advocate Commissioner has reported presence of iron bar even before passing of Ext.P3, order on 22.10.2010. 2. Learned counsel for petitioners pointed out that the iron bar put up and locking up of gate cause much inconvenience to the petitioners in that they are not able to take vehicles through plaint C schedule way, their only access to the plaint A and B schedules and that the iron bar was put up with intent to block taking of vehicles through plaint C schedule. Learned counsel for contesting respondents contended that the iron bar was put up across plaint C schedule sometime in the year 1995 and later the gate was put up before institution of the suit. It is submitted by learned counsel that the Advocate Commissioner in Ext.P2, report after inspection on 28.06.2010 has referred to the existence of the iron bar and Ext.P3, status quo order was passed only on 22.10.2010 and hence the iron bar cannot be ordered to be removed at this stage. 3. In Ext.P2, report the Advocate Commissioner after inspection of property on 28.06.2010 (the suit was filed on 15.06.2010) referred to the existence of the gate and the iron bar. But I am told that the Advocate Commissioner has not O.P(C) No.2273 of 2011 -: 3 :- reported about oldness of the iron bar. At any rate Ext.P3, order was passed only on 22.10.2010 at a time when gate and iron bar were in existence. Exhibit P3, order does not direct removal of the iron bar but only directs respondents to keep open the gate till the disposal of the suit. In the circumstances at this stage petitioners cannot contend that there is violation of Ext.P3, order by installing iron bar and seek its removal. In that view of the matter learned Munsiff is correct in passing Ext.P6, order. But the gate has to be kept opened without locking. That is the direction learned Munsiff has given in Ext.P3, which remains in force. Hence that order is to be obeyed by the respondents. 4. Contesting respondents have a further contention that petitioners have other access to their properties. I am not required to go into that question at this stage. 5. Having regard to the contentions raised and circumstances stated above, respondents are directed to comply with Ext.P3, order and keep open the gate put up on plaint C schedule way without locking it, till disposal of the suit as directed in Ext.P3. If in contravention of the said order respondents lock the gate, it will be open to the learned Munsiff O.P(C) No.2273 of 2011 -: 4 :- to depute an Amin and ensure that the gate is kept open. I also make it clear that this judgment will not stand in the way of learned Munsiff passing appropriate final orders on I.A. No.254 of 2010 (in O.S. No.461 of 2010) as provided under law. Original Petition is closed as above. THOMAS P. JOSEPH, JUDGE. vsv