IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 5014 of 2008(V) --------------------------------------- AGAINST THE ORDER IN CMA.13/06 AND CMA.16/2006 of SUB COURT, SULTHAN BATHERY OS.161/2005 of MUNSIFF'S COURT,MANANTHAVADY .................... PETITIONER: --------------------- E.C.MUHAMMED @ BAPPU,ELACHOLA HOUSE ERUMATHERU, VEMOM AMSOM DESOM, MANANTHAVADY TALUK. BY ADV. SRI.P.N.PURUSHOTHAMA KAIMAL RESPONDENTS: -------------------------- 1. P.K.RAJAN, 'VAISAKH' AARATTUTHARA MANANTHAVADY P.O.,& VILLAGE, WAYANAD. 2. K.AHAMMEDKUTTY, KUNNUMMEL HOUSE CLUBKUNNU, MANANTHAVADY, WAYANAD. 3. PETER, PALLINCHAKUDIYIL HOUSE MANANTHAVADY P.O.,WAYANAD. 4. THE MANANTHAVADY TOWN DEVELOPMENT SOCIETY REPRESENTED BY ITS PRESIDENT P.MOIDEENKUTTY. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 SRI.K.A.ABDUL SALAM FOR R4 SRI.ANILKUMAR.K.N.PILLAI FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5014/2008 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1; COPY OF THE PLAINT SUBMITTED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, MANANTHAVADY DTD. 16/11/2005. EXT.P2: COPY OF PAPER PUBLICATION APPEARED IN MATHRUBHOOMI DAILY DTD. 5/12/2005. EXT.P3: COPY OF THE I.A. SUBMITTED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, MANANTHAVADY DTD. 04/02/2006. EXT.P4: COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, MANANTHAVADY DTD. NIL. EXT.P5: COPY OF THE AFFIDAVIT AND PETITION FILED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, MANANTHAVADY DTD. 23/03/2006. EXT.P6: COPY OF THE ORDER IN O.S.161/05 OF THE MUNSIFF MAGISTRATE, MANANTHAVADY DTD. 29/02/06. EXT.P7: COPY OF THE ORDER IN CMA 13/06 & 16/06 OF THE SUB COURT, SULTHANBATHERI DTD. 30/11/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.5014 OF 2008 =========================== Dated this the 21st day of July, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India challenging Ext.P6 and P7 orders. Respondents 1 and 2 instituted O.S.161/2005 a suit for permanent prohibitory injunction restraining the sole defendant from making any alteration or effecting any construction in the plaint A schedule drainage. Along with the suit they filed an application for permission to institute the suit in their representative capacity representing the public. A Commission was taken out and Commissioner submitted a report. A petition was filed under Rule 1 of Order XXXIX of Code of Civil Procedure and an order of temporary injunction was granted. Respondents filed Ext.P3 (I.A.111/2006) under Rule 2A of Order XXXIX of Code of Civil Procedure for taking action for violation of the order of injunction. In that petition apart W.P.(C)5014/2008 2 from the original defendant petitioner and one Jaison Peter were impleaded. A Commission was taken out and the Commissioner reported that after his first inspection the drainage was covered. Respondents filed I.A.12/2006 an application for an order directing respondents to restore status quo ante. In that petition also respondents in Ext.P3 application were impleaded as respondents. Petitioner filed a separate counter contending that he did not violate the order of injunction and he was not aware of the pendency of the suit or the order of injunction passed till he was served with a notice in the application and he had not seen any paper publication. It was contended that the drainage was not covered on 26.12.2005 as claimed by respondent but on 27.11.2005 and it was not done by respondents but by Mananthavady Development Society. Learned Munsiff considered I.A.112/2006 separately. Under Ext.P6 order it was found that in violation of the order of injunction granted the drainage was covered. Learned Munsiff also found W.P.(C)5014/2008 3 that it was admitted by second respondent in the application that he had given a consent letter to the petitioner herein to cover the drainage and though petitioner contended that it was not done by him both of them are the beneficiaries and it could have been done only by them. Therefore under Ext.P6 order, petitioner and second respondent therein were directed to remove the illegal construction and to restore the drainage to the position as on 17.11.2005 within two weeks and granted liberty to respondents plaintiffs to remove the illegal construction and to realise the cost from them in case petitioner and the other defendant fails to comply with the order. Petitioner filed CMA 13/2006 challenging that order. The other defendant filed C.M.A.16/2006 challenging the same order. Under Ext.P7 order learned Sub Judge dismissed both the appeals. This petition is filed under Article 227 of the Constitution of India challenging the orders. Second respondent in I.A.112/2006 did not challenge W.P.(C)5014/2008 4 the order and he is not made a party in this petition also. 2. Learned counsel appearing for petitioner and respondents 1 and 2 were heard. 3. Though fourth respondent was impleaded, he was not a party to Ext.P6 or P7 orders. Though 4th respondent had filed an application to get themselves impleaded, that petition was dismissed. Therefore as far as this petition is concerned, 4th respondent is an unnecessary party. 4. The argument of learned counsel appearing for petitioner is that eventhough an order of injunction was granted in favour of respondents 1 and 2 and against third respondent, the sole defendant in the suit, petitioner was not a party to the suit or the order of injunction and he did not violate the order of injunction. It was argued that the drainage was covered not on 26.12.2005 as contended by respondents 1 and 2 and instead it was covered on 27.11.2005 and that too not by petitioner but by 4th respondent and therefore W.P.(C)5014/2008 5 learned Munsiff was not justified in finding that petitioner violated the order of injunction or covered the drainage. It was argued that without evidence learned Munsiff should not have found that petitioner violated the order of injunction or covered the drainage and therefore the direction given to petitioner to remove the covering is illegal and is to be set aside. Learned counsel also argued that when the ex parte order of injunction was not made absolute, learned Munsiff should have passed an order in that application and before considering the application Munsiff was not justified in directing the parties to maintain status quo ante and that too by removing the covering of the drainage. 5. Learned counsel appearing for respondents 1 and 2 argued that petitioner was not impleaded in the suit as defendant and petitioner was impleaded only in the application for taking action for violation of order of injunction and for restoration of the drainage to its original W.P.(C)5014/2008 6 position and petitioner is not entitled to challenge the order of injunction granted in the suit or complain that order is not made absolute. Learned counsel argued that even if the finding of the learned Munsiff that petitioner violated the order of injunction is not supported by evidence and therefore direction given to remove the covering as against the petitioner is not perfectly correct, there is no necessity to interfere with Exts.P6 and P7 orders except to that extent. It was submitted that respondents 1 and 2 may be permitted to remove the covering at their expenses and realise the same from the responsible person after the court disposes Ext.P3 application for violation of the order of injunction. 6. On hearing the learned counsel on both sides, I do not find that there is any necessity to interfere with Ext.P6 and P7 orders with regard to the direction to restore the position of the drainage as at the time when the order of temporary injunction was granted by the trial court. W.P.(C)5014/2008 7 Immediately after the order of temporary injunction granted, Commissioner inspected the property and found that drainage was not covered. The subsequent report of the Commissioner establish that as against the order of temporary injunction granted which was not vacated so far or modified, drainage was subsequently covered. In such circumstance, learned Munsiff was justified in permitting respondents 1 and 2 to restore the drainage to its original position. The learned Sub Judge was perfectly correct in not interfering with that portion of the order. But finding in Ext.P6 and P7 orders that petitioner violated the order of injunction and therefore he is liable to restore the drainage to its original position is not sustainable in the absence of evidence to prove that petitioner either covered the drainage or violated the order of injunction. The question whether the order of temporary injunction originally granted is binding on the petitioner and whether petitioner has violated the order and if so W.P.(C)5014/2008 8 whether action could be taken against him as provided under Rule 2A of Order XXXIX are matters to be considered by learned Munsiff on the evidence in Ext.P3 application. With liberty to the parties to agitate that question that finding on Exts.P6 and P7 orders as against him is quashed. Learned Munsiff is directed to permit respondents 1 and 2 to restore the drainage to its original position at their expenses. 7. Learned counsel appearing for petitioner submitted that there may be direction to learned Munsiff to dispose the injunction application. But petitioner is not a party to that application. None of the parties to the petition did seek an order for a direction to Munsiff to dispose the application. Whatever it be, Rule 3A of Order XXXIX mandates that when the court granted an order of injunction without giving notice to the opposite party, Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was W.P.(C)5014/2008 9 granted. In such circumstance, learned Munsiff to pass final order in the application filed under Rule 1 of Order XXXIX. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006