IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 OP(C).No. 3738 of 2011(O) ------------------------------------- [CMA.NO.15/2011 OF SUB COURT, OTTAPPALAM, OS.NO.215/2010 OF MUNSIFFS-MAGISTRATE COURT,PATTAMBI] .................... PETITIONER/PETITIONER/APPELLANT: -------------------------------------------------------- AHAMMED,AGED 48 YEARS,S/O.POKKOTTU VALAPPIL MUHAMMED,KUMARANELLUR AMSOM, CHEKKODU DESOM,OTTAPALAM TALUK. BY ADVS. SRI.SANTHEEP ANKARATH, SRI.SUMODH MADHAVAN NAIR. RESPONDENTS/RESPONDENTS/RESPONDENTS: ----------------------------------------------------------------------- 1. PANANGADAN,AGED 70 YEARS, S/O.ERANJIKKATTIL THARU,KUMARANELLUR AMSOM, CHEKKODU DESOM,OTTAPALAM TALUK,PIN-679 552. 2. AMMINI,AGED 68 YEARS,W/O.PANAGADAN, KUMARANELLUR AMSOM,CHEKKODU DESOM,OTTAPALAM TALUK,PIN-679 552. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3738/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: TRUE COPY OF AFFIDAVIT DATED 18.12.2010 IN SUPPORT OF I.A.1653/2010 IN O.S.NO.215/2010 FILED BEFORE THE MUNSIFF'S COURT, PATTAMBI. EXT.P2: TRUE COPY OF THE COUNTER FILED BY THE PETITIONER HEREIN IN I.A.1653/2010 DATED 24.1.2011. EXT.P3: TRUE COPY OF ADDITIONAL COUNTER DATED 7.2.2011 FILED BY THE PETITIONER IN I.A.NO.1653/2010. EXT.P4: TRUE COPY OF THE ORDER DATED 16.03.2011 IN I.A.1653/2010 IN O.S.215/2010 PASSED BY MUNSIFF-MAGISTRATE'S COURT,PATTAMBI. EXT.P5: TRUE COPY OF ORDER DATED 12.4.2011 IN I.A.1142/2011 IN CMA.15/2011 PASSED BY SUBORDINATE JUDGE'S COURT,OTTAPALAM. EXT.P6: TRUE COPY OF COMMISSIONER'S REPORT AND SKETCH DATED 24.1.2011 IN O.S.215/2010 ON THE FILE OF THE MUNSIFF-MAGISTRATE'S COURT,PATTAMBI. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3738 of 2011 ==================================== Dated this the 17th day of November, 2011 J U D G M E N T Defendant in O.S. No.215 of 2010 of the court of learned Munsiff and appellant in C.M.A. No.15 of 2011 of the court of learned Sub Judge, Ottappalam is the petitioner. Respondent filed the suit for a decree for prohibitory injunction to restrain petitioner running a Carpentary Unit adjacent to his house on the ground of sound and air pollution and that petitioner has not obtained the necessary licence for the purpose. Learned Munsiff granted injunction restraining petitioner from running the Carpentary Unit without licence making it clear that the order will not stand in the way of petitioner running the Carpentary Unit after getting necessary licence. Petitioner challenged that order in C.M.A. No.15 of 2011 and applied for stay of operation of the order of injunction vide I.A. No.1142 of 2011. Learned Sub Judge vide impugned order, refused to grant stay for the reason that learned Munsiff has only restrained petitioner running the Carpentary Unit without obtaining licence and at that stage of the C.M. Appeal it was not proper to grant stay. The said order is O.P(C) No.3738 of 2011 -: 2 :- under challenge. 2. Learned counsel submitted that the only ground on which learned Munsiff granted injunction is want of licence. According to petitioner no licence is required to run the Unit in the way petitioner is engaging in that work and information to that effect is obtained from the local authority under the Right to Information Act. In that view of the matter, learned Sub Judge ought to have granted stay, it is argued. 3. Grant of stay is within the discretionary power of course to be exercised in a judicial manner. Learned Sub Judge has stated the reason for not granting stay. If petitioner has a case that no licence is required to run the Unit in the way he is engaging, it is open to the petitioner to convince the learned Sub Judge of that plea. It is also open to the petitioner to contend before the learned Sub Judge that the question whether licence is required or not is a matter to be decided by the local authority. Having regard to the grievance of petitioner, learned Sub Judge is directed to expedite disposal of C.M.A. No.15 of 2011 if preliminary steps are over. O.P(C) No.3738 of 2011 -: 3 :- Original Petition is disposed of directing the learned Sub Judge to dispose of C.M.A. No.15 of 2011 as early as possible after completing the preliminary steps, untrammelled by the observations contained in the order on I.A. No.1142 of 2011. THOMAS P. JOSEPH, JUDGE. vsv