IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 FAO.No. 75 of 2010() -------------------- AGAINST THE ORDER DATED 17/02/2010 IN IA.389/2010 IN AS.153/2009 of SUB COURT, TIRUR .................... APPELLANT/PETITIONER: ---------------------------------------- KANHENGATTEL ABDU,S/O.POKKU, AGED 60 YEARS, RESIDING AT PURANG AMSOM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADVS. MR.JOBY JACOB PULICKEKUDY, MR.ANIL GEORGE. RESPONDENT(S): RESPONDENT: --------------------------------------------------- MANALOOR NABEESU, D/O.MUHAMMEDUNNI, AGED 56 YEARS,PUNNAYOORKULAM AMSOM,DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. MR. RAJESH SIVARAMANKUTTY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1132/2010 IN FAO.NO.75/2010 DISMISSED 18/03/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 75 OF 2010 = = = = = = = = = = = = = = = Dated this the 18th day of March, 2010. J U D G M E N T This appeal is preferred against the order in I.A.389/10 in A.S.153/09 of the Subordinate Judge's Court, Tirur. The plaintiff filed a suit for declaration of his right by easement by prescription and the trial court after the trial dismissed the suit holding that the plaintiff is not entitled to any declaratory right. It is against that decision the plaintiff moved an appeal before the Subordinate Judge, Tirur. The plaintiff also moved an application for interim mandatory injunction to direct the defendant therein to demolish the fence which she has constructed after the dismissal of the suit. 2. It is the case of the plaintiff that by obtaining an order for police protection from this Court the defendant has done the mischief and therefore the right of the plaintiff is not protected. When a suit is dismissed necessarily unless there is an order by any competent Court one cannot hold F.A.O. 75 OF 2010 -:2:- that the defendant is not permitted to enter into the property at all. But civil litigation is a long process and preservation of the property is also a part of that process. It has to be borne in mind that though the parties originally agreed for hearing of the appeal itself, the plaintiff retracted from that stand and wanted the Subordinate Judge to hear and dispose of the matter even without calling for the records. Really that has handicapped the learned Subordinate Judge. So with the materials available the learned Subordinate Judge held that making of an interim mandatory injunction is an extraordinary jurisdiction which is very rarely resorted to by the Courts and on finding that the court below has negatived the right of easement in favour of the plaintiff refused to grant the interim mandatory injunction. It has to be stated the very finding of the learned Munsiff is challenged. Now had the plaintiff little patience in the matter, the Court would have called for the records and heard the same and decide it on proper materials. Therefore materials are absolutely necessary to be looked into the question whether F.A.O. 75 OF 2010 -:3:- extraordinary jurisdiction of mandatory injunction can be exercised in favour of the plaintiff and therefore I feel that the order dismissing the application can be set aside and the application be remanded back to the Subordinate Judge's Court for fresh consideration. I make it very clear that I am not expressing anything on merits of the case but suffice to say that the appellate court can call for the records through a special messenger and give a date for hearing and then as far as possible dispose of the matter before the Court closes for summer holidays. Parties are directed to appear before the Subordinate Judge' Court, Tirur on 24.3.2010 and the Registry is directed to immediately despatch the order in the case. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-