IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 18301 of 2008(D) -------------------------- CMA.28/2008 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.192/2008 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER: ------------ K.G.JAMES, AGED 60 YEARS, S/O.K.G.GEORGE, KARIPURAM HOUSE, KESTON ROAD, KOWDIAR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: ------------- 1. VENPALAVATTOM SREE BHAGAVATHY TEMPLE, VENPALAVATTOM, ANAYARA POST, THIRUVANANTHAPURAM PIN - 695 029, REPRESENTED BY THE PRESIDENT OF THE COMMITTEE MR.CHANDRAHASAN. 2. MR.CHANDRAHASAN, PRESIDENT TEMPLE COMMITTEE, VENPALAVATTOM SREE BHAGAVATHY TEMPLE, RESIDING AT VALIAVILAKATHU VEEDU, VENPALAVATTOM, ANAYARA P.O., THIRUVANANTHAPURAM - 695 029. BY ADV. SRI.M.R.ANANDAKUTTAN FOR R1,2 SMT.M.HEMALATHA FOR R1,2 SRI.R.S.MADHU FOR R1,2 SRI.MAHESH ANANDAKUTTAN FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.18301 of 2008 EXT.P1 TRUE COPY OF PLAINT IN O.S.NO.192/08 OF MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P2 TRUE COPY OF I.A.NO.1065/08 ;IN O.S.NO.192/08 OF MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P3 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE SECOND RESPONDENT IN I.A.NO.1065/08 EXT.P4 TRUE COPY OF ORDER IN I.ANO.1065/08 DATED 15.3.2008 OF MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P5 TRUE COPY OF C.M.A.NO.28/08 FILED BY THE PETITIONER AND HIS WIFE BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. EXT.P6 TRUE COPY OF I.A.NO.1804/08 ALONG WITH THE C.M.A. FILED BY THE PETITIONER AND HIS WIFE. EXT.P7 TRUE COPY OF AFFIDAVIT FILED BY THE RESPONDENTS. EXT.P8 TRUE COPY OF ORDER IN I.A.NO.1804/08 OF DISTRICT COURT, THIRUVANANTHAPURAM, DATED 28.5.2008. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.18301 of 2008 ------------------------------- Dated this the 28th July, 2008. J U D G M E N T Petitioner is the first appellant and respondents the respondents in C.M.A.No.28 of 2008 on the file of District Court, Thiruvananthapuram. C.M.A.No.28/2008 was filed against Ext.P4 order in I.A.No.1065 of 2008 in O.S.No.192 of 2008. That suit was instituted by petitioner and others for declaration of title, mandatory injunction and other reliefs. I.A.No.1065 of 2008 was filed for an order of temporary injunction restraining respondents from constructing any structure in the plaint schedule property. Under Ext.P4 order, the original ex parte order of injunction was vacated and the petition for injunction was dismissed. In C.M.A., petitioner and others filed I.A.No.1804 of 2008, an application for temporary injunction. An order of temporary injunction was granted on 11.4.2008, till disposal of the appeal, as respondents did not file an undertaking as agreed on 9.4.2008. Subsequently, respondents filed an application to review that order. Under Ext.P8 order, learned Additional District Judge accepting Ext.P9 undertaking submitted by the respondents, the order of temporary injunction granted on W.P.(C) No.18301 of 2008 2 11.4.2008 was reviewed and the petition was closed. This petition is filed under Article 227 of the Constitution of India to quash Ext.P8 order and to dispose Ext.P5 appeal, on merits, within a time limit to be fixed by the Court. 2. The learned counsel appearing for the petitioner and respondents were heard. 3. As is clear from Ext.P8 order, an order of temporary injunction was granted on 11.4.2008, for the sole reason that respondents did not submit an undertaking as agreed on 9.4.2008. That order of temporary injunction was not granted on merits. Ext.P8 order shows that injunction application was closed accepting Ext.P9 undertaking letter. The learned counsel argued that when respondents did not file an undertaking as agreed on 9.4.2008, learned District Judge should not have reviewed the order of injunction granted and instead should have disposed the application on merits. 4. C.M.A.No.28 of 2008 itself is filed challenging the order of the trial court refusing to grant an order of temporary injunction in favour of the petitioners restraining respondents from carrying out any construction in the plaint schedule property. In such W.P.(C) No.18301 of 2008 3 circumstances, as Ext.P8 order was not passed on merits, it is quashed. Additional District Judge, Thiruvananthapuram, is directed to dispose C.M.A.No.28 of 2008, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Parties to maintain status quo till the disposal of the appeal. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.