IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 2895 of 2010(O) ------------------------- AS.47/2007 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- 1. SYAMALA, D/O.VIJAYAMMA, SAMPATH BHAVAN, KUTTICHHAL, PARUTHIPALLY P.O., THIRUVANANTHAPURAM. 2. MADHAVAN,, S/O.KUTTAPPAN, SAMPATH BHAVAN, KUTTICHHAL, PARUTHIPALLY P.O., THIRUVANANTHAPURAM. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): --------------- MURUKAN, S/O.VASUDEVAN, CHELLATTUKONATH VEEDU, VELLAIKADAVU, PULIYARAKONAM P.O., THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.2895 of 2010 = = = = = = = = = = = = = = Dated this the 29 th day of January, 2010 JUDGMENT The petitioners who are the defendants in O.S.No.1932 of 2003 on the file of the Munsiff's Court-IV, Thiruvananthapuram are the respondents in A.S.No.47 of 2007 pending before the Prinicpal Sub Court, Thiruvananthapuram. The aforesaid suit instituted by the respondent herein was one for injunction claiming a right of way by way of easement. suit after trial was dismissed and aggrieved by the judgment and decree passed by the trial court the respondent has filed the aforesaid appeal before the Sub Court, Thiruvananthapuram. As in the trial court there was an interim injunction against the petitioners herein in the lower appellate court also. While so, the respondent herein has filed a petition under Order XXXIX Rule 2A C.P.C alleging violation of interim injunction. In that petition he W.P.(c)No. 2985 of 2010 2 has filed an application to take out a Commission and the lower appellate court as per Ext.P5 order dated 11.01.2010 appointed an Advocate Commissioner. It is the said order which is assailed in this writ petition. 2. The learned counsel for the petitioners would submit that the lower appellate court has passed a non-speaking order and has ignored the fact that in an earlier litigation between the parties, the civil court had held that the respondent herein has no right of way as alleged and in the present suit also, the trial court has found that he does not have the right of way as alleged. 3. As for the contention that the court below has passed a non-speaking order, I fail to understand as to why a speaking order should be passed while appointing a Commission in an application under Order XXXIX Rule 2A C.P.C. As for the further contention that the respondent herein lost in an earlier litigation with regard to the right of way claimed by him, that is a matter to be urged at the time of final hearing of the appeal. W.P.(c)No. 2985 of 2010 3 The present controversy before the lower appellate court is as to whether the petitioners herein have violated the order of temporary injunction passed in the appeal. They have not challenged the order of temporary injunction passed by the lower appellate court. 4. The learned counsel for the petitioners prayed for a direction to the lower appellate court to dispose of the appeal itself expeditiously. The appeal has been filed in the year 2007 only and having regard to the pendency of cases before the lower appellate court it may not be fair on the part of this Court to direct the Sub Court to take up the appeal out of turn and dispose of the same without clearing the huge backlog of cases. It is open to the petitioners to persuade the lower appellate court to take up the appeal out of turn and get the same disposed of on merits. 5. I do not find any good ground to interfere with Ext.P5 order. It goes without saying that the petitioners can contend before the lower appellate court that there is no violation of W.P.(c)No. 2985 of 2010 4 order of injunction passed by the lower appellate court. This writ petition is accordingly dismissed. Dated this the 29th day of January, 2010. V. RAMKUMAR, JUDGE sj