IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 37848 of 2008 THE ORDER IN IA 298/2008 IN CMA.13/2008 OF DISTRICT COURT, KASARAGOD OS.218/2008 OF ADDL.MUNSIFF'S COURT, KASARAGOD PETITIONERS: --------------- 1. K.M. MUNEER, S/O. MUHAMMED KUNHI, RESIDING AT KANNOOR KUNNU KANNUR VILLAGE, KANNUR TALUK. 2. K.M. NAZIR, S/O. MUHAMMED KUNHI, RESIDING AT KANNOOR KUNNU KANNUR VILLAGE, KANNUR TALUK. BY ADV. SRI.P.K.MUHAMMED RESPONDENT: --------------- MAHINKUTTY, S/O. MAMMUNHI, RESIDING AT KANNOOR KUNNU, KANNUR VILLAGE AND KASARAGOD TALUK. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SMT.P.L.MARY TREASA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE APPEAL MEMORANDUM IN CMA.13/08 BEFORE THE DISTRICT COURT, KASARAGOD DATED 15.9.2008. EXT.P2 TRUE COPY OF THE ORDER IN I.A.NO.1464/08 IN O.S.NO.218/2008 ON THE FILE OF THE MUNSIFF'S COURT, KASARAGODE. EXT.P3 TRUE COPY OF THE PLAINT IN O.S.NO.218/08 ON THE FILE OF THE MUNSIFF'S COURT, KASARAGODE DATED 19.8.2008. EXT.P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.NO.218/08 DATED 13.10.2008. EXT.P5 TRUE COPY OF THE APPLICATION IN I.A.NO.1469/08 IN OS.218/08. EXT.P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.NO.1469/08 IN O.S.NO.218/08 DATED 26.8.2008. EXT.P7 TRUE COPY OF THE INTERIM REPORT AND SKETCH SUBMITTED BY ADVOCATE COMMISSIONER IN O.S.218/08. EXT.P8 TRUE COPY OF STAY PETITION I.A.NO.298/08 IN CMA.13/08 DISTRICT COURT, KASARAGODE DATED 15.9.2008. EXT.P9 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.33474/08 DT.13.11.2008. EXT.P10 TRUE COPY OF THE ORDER PASSED BY THE LEARNED SESSIONS JUDGE, KASARAGODE DATED 4.12.2008. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 37848 OF 2008 E ------------------------------------------------------ Dated this the 24th February, 2009 JUDGMENT The petitioners are the defendants in O.S.No.218 of 2008, on the file of the court of the Additional Munsiff, Kasaragode. The suit was filed by the respondent for a permanent prohibitory injunction restraining the defendants from constructing any compound wall and obstructing the pathway leading to the B schedule property or in any other way interfering with the plaintiff's user of the pathway. The plaint A schedule property belongs to the plaintiff. Plaint B schedule property belongs to the defendants. The plaintiff is claiming a right of way through the plaint B schedule property. 2. As per Ext.P2 order dated 30.8.2008 in I.A.No.1464 of 2008, the trial court allowed the application for temporary injunction filed by the plaintiff. It was held that the balance of convenience lies in maintaining the status quo till the disposal of the suit. 3. Ext.P2 order was challenged by the defendants in C.M.A.No.13 of 2008. I.A.No.298 of 2008 was filed for staying the operation of the order passed by the trial court. The Lower Appellate Court by Ext.P10 W.P.(C) NO.37848 OF 2008 :: 2 :: order dated 4.12.2008, dismissed the application for stay by a detailed order. In paragraph 15 of the order, the court below held thus: “15. Thus, considering the above aspects, since it has come out that there are two steps on the southern wall of the residential compound of the plaintiff and traces of casual user of way are found from the public way along the plaint B schedule property leading to those steps, I find that since the plaintiff has established a prima facie case, the question as to whether the plaintiff is having a right of easement by prescription over the said way, has to be considered only in the light of further evidence. Hence, in case, the defendants, ie., the petitioners herein are allowed to proceed with the construction of the compound wall, taking into consideration the comparative hardships of the parties, I find that the plaintiff would be put to more hardships and loss. Thus I find that, at this stage, as rightly found by the learned Munsiff, the balance of convenience and injury aspects are in favour of the plaintiff. Hence, I am inclined to hold that the petitioners/appellants are not entitled to seek an order of stay of the operation of the impugned order.” 4. C.M.A.No.13 of 2008 is pending disposal. At this stage, I do not think that the petitioners are entitled to any indulgence in the matter. There is no ground to interfere with the well considered order (Ext.P10) at this stage. Since the C.M.Appeal is pending, it is only just and necessary that the contentions of the parties are put forward in the said Appeal. For the aforesaid reasons, without prejudice to the right of the petitioners to put forward all their contentions in the C.M.Appeal filed by them, the Writ Petition is dismissed. The court below shall dispose of W.P.(C) NO.37848 OF 2008 :: 3 :: C.M.A.No.13 of 2008 untrammelled by the observations contained in Ext.P10 order in I.A.No.298 of 2008. (K.T.SANKARAN) Judge ahz/