IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No.1895 of 2009 (A) ------------------------------- CMA.31/2008 of DISTRICT COURT, THALASSERY OS.67/2008 of M.C.,KANNUR .................... PETITIONER: --------------- PILAKEEL PALLIKANDI RASIYA, W/O.ABDUL SATHAR, AGED 45 YEARS, THAYETHERU, KANNUR TALUK. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT: ---------------- B.T.ABDUL SATHAR, S/O.LATE HUSSAINKUNHI, AGED 55 YEARS, ADVOCATE, PANANKAVU, P.O.CHIRAKKAL, KANNUR II. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.1895 of 2009 ------------------------------------------------ Dated this the 19th day of January, 2009 JUDGMENT Petitioner is the sole defendant in O.S.No.67/08 on the file of the Munsiff's Court, Kannur and the respondent is the sole plaintiff in the said suit. The respondent alleged that he has got a right to use the plaint schedule property for ingress and egress to his property and building and filed the said suit for a decree of permanent prohibitory injunction restraining the defendant from locking the iron gate installed at the south western corner of the scheduled property and from making any construction so as to obstruct or reduce the width and length of plaint 'C' schedule pathway and from preventing the plaintiff to take vehicles through plaint 'C' schedule pathway and directing the defendant to remove the block W. P. C No.1895 of 2009 -2- created by him at the south western corner of plaint 'C' schedule property and to open plaint 'C' schedule pathway for vehicular traffic. Petitioner/defendant filed Exhibit P2 written statement resisting the suit. Respondent/plaintiff filed Exhibit P3 affidavit along with an application seeking for a mandatory inunction directing the petitioner/defendant to demolish and remove the obstructions and the iron gate at the south western corner of the schedule property so as to make plaint 'C' schedule pathway convenient for vehicular traffic and on failure to depute a court Amin to execute the order. Petitioner/defendant filed Exhibit P4 counter and objected to the grant of mandatory injunction prayed for. 2. I.A.453/08 filed by the respondent/ plaintiff for injunction and I.A.454/08 filed W. P. C No.1895 of 2009 -3- by the respondent/plaintiff for mandatory injunction were disposed of by the court below vide Ext.P5 common order dt.04/03/08 dismissing I.A.453/08 and allowing I.A.454/08 directing the petitioner/defendant to remove the gate installed on the western side of 'C' schedule way within three days so as to enable the respondent/plaintiff and his tenants to use the 'C' schedule way and ordering that Ext.C2 shall form part of the order. The said Ext.C2 is stated to be Ext.P13 produced by the petitioner. The petitioner filed C.M.A.31/08 assailing the said mandatory order of injunction and the said appeal was dismissed by the first appellate court vide Ext.P8 judgment in the said C.M.A.31/08 dt.14/10/08. It is assailing the said Ext.P8 judgment confirming Ext.P5 order passed by the trial court that this Writ Petition is filed. W. P. C No.1895 of 2009 -4- 3. Arguments of counsel on both sides were heard at length. The direction of the court below was to remove the gate installed on the western side of the 'C' schedule way. Counsel for the petitioner/defendant submits that if the gate is removed the entire property will be left open even during night time and that it will render insecurity and therefore, he may be allowed to keep the gate locked between 9.00 p.m. and 7.00 a.m. and that to that extent the direction to remove the gate so installed may be modified. I am of the view that the purpose will be served by making a modification in Ext.P5 order to that much extent till disposal of the court by the court below. 4. In the result, I order that the gate on the western side of 'C' schedule pathway directed to be removed by Ext.P5 order and W. P. C No.1895 of 2009 -5- confirmed by Ext.P8 judgment shall stand modified to the extent that the gate need not be removed, but shall be kept open between 7.00 a.m and 9.00 p.m until disposal of the suit by the court below. 5. Counsel for the respondent submits that even after the said time there may be necessity for himself and his tenants to have the gate opened and therefore, key may be ordered to be provided to all of them. The respondent himself shall provide a lock to the gate with one key furnished to the appellant and he can serve necessary duplicate keys to his tenants as he pleases. If he does not do so in another two days, the petitioner is allowed to use his own lock and furnish one key to the respondent and the respondent may have the key duplicated so as to give the necessary duplicated keys to his tenants. This W. P. C No.1895 of 2009 -6- direction shall remain in force till disposal of the suit by the court below. 6. With the above modifications in the order of the courts below, I dispose of this Writ Petition. K.P.BALACHANDRAN, JUDGE kns/-