IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WP(C).No. 11840 of 2008(H) ---------------------------------------- CMA.44/2007 of IST ADDL.DISTRICT COURT, KOZHIKODE OS.127/2007 OF PRL.M.C.KOZHIKODE-I .................... PETITIONER(S): ----------------------- C.K. RAMESH, S/O.NARAYANAN NAMBIAR RESIDING AT C.K.HOUSE, P.O. THIRUVANGAD THALASSERY TALUK, KANNUR DISTRICT. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE BU ADV. MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.P.S.APPU RESPONDENT(S): -------------------------- 1. SURESH MASTER @ SURESH S/O.GOPALAKURUP, RESIDING AT MUDRA NANGOLAKANDI PARAMBA, P.O. PUTHIYANGADI KOZHIKODE-21. 2. K.T.HARISH, S/O.LATE K.T.AND RESIDING AT KOLADI, THEKKEYIL HOUSE P.O.ERANHIKKAL, KOZHIKKODE DISTRICT. 3. P.GOPALAKRISHNAN S/O.LATE KUNHIRAMAN, RESIDING AT KIZHAKKAYIL HOUSE P.O.ERANHIKKAL, KOZHIKKODE DISTRICT. 4. KIZHAKKEYIL VELAYUDHAN S/O.PARANGODAN, RESIDING AT PARAYICHEER PARAMBA P.O.THALAKKULATHUR, KOZHIKKODE DISTRICT. 5. A.V.UNNIKRISHNAN NAMBIAR S/O.GOVINDAN NAIR, RESIDING AT BABY VILLA PUTHUVAYAL, ERANHIKKAL P.O., KOZHIKODE DISTRICT. W.P.(C) NO.11840/2008 6. THE EXECUTIVE TRUSTEE PUTHUR SREE DURGA TEMPLE, PUTHIYANGADI P.O,. KOZHIKKODE. BY ADVS.MR.P.V.KUNHIKRISHNAN FOR R1 TO 5 SMT.SHAHNA KARTHIKEYAN FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11840/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER IN IA. 812/07 IN OS. NO.127/07 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF-I, KOZHIKKODE DT. 28.3.07. P2:- COPY OF THE JUDGMENT IN CMA. 44/07 ON THE FILE OF THE COURT OF THE DISTRICT JUDGE OF KOZHIKKODE DT. 8.10.07. TRUE COPY P.A. TO JUDGE TSS S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.11840 of 2008 - H --------------------------------- Dated this the 4th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To set aside Ext.P2 judgment and restore Ext.P1 order. ii) To direct the court below to dispose of O.S.No.127/2007 untrammelled by Ext.P2 judgment. iii) To permit the plaintiff to use item No.1 property as access without creating any right pending suit”. 2. Petitioner is the plaintiff in O.S.No.127/2007 pending on the file of the Principal Munsiff Court, Kozhikode. Suit was one for perpetual prohibitory injunction. Along with the suit, plaintiff moved an application for interim injunction which after hearing both sides was allowed by the learned Munsiff. The defendants in the suit challenged that order before the appellate court and after hearing both sides, the order of injunction was modified confining it to item Nos.2 to 9 scheduled in the plaint. Ext.P2 is that judgment. It is submitted by the counsel on both sides that after disposal of the appeal, an advocate commission W.P.(C).No.11840 of 2008 - H 2 conducted a local inspection, measured out the property with the assistance of a surveyor and filed a report. From the submission made it appears the suit is ripe for trial and any further enquiry on the merits of the application for injunction moved by the plaintiff will only protract the trial of the suit. The learned Munsiff is directed to dispose the suit, as expeditiously as possible, untrammelled by any of the observations made in this judgment and also in the appellate court's judgment arising from the application for injunction, affording reasonable opportunity to both sides to give evidence in support of their respective case. The commission report filed in the case, subject to the objections raised by the parties, shall also be taken into account in resolving the disputes arising in the suit with other materials produced by both sides in the suit. The writ petition is disposed of as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn-