IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 6716 of 2010(O) ------------------------- CMA NO.1/2009 OF SUB COURT, PALA. I.A.NO.232/1999 IN OS 190/1999 OF MUNSIFF COURT, ERATTUPETTA. PETITIONER(S): --------------- AUGUSTINE AGED 50 YEARS, S/O.AUGUSTINE, KATTACKAL, KEEZHAMPARA KARA, KONDOOR VILLAGE. BY ADV. SRI.V.R.KESAVA KAIMAL RESPONDENT(S): --------------- JOSEPH, S/O. MATHAI, POTTANAIYIL, KEEZHAMPARA KARA, KONDOOR VILLAGE. ADV. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010, ALONG WITH WP(C) NO.9909/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6716/2010 APPENDIX PETITIONR'S EXHIBITS: EXT.P1 TRUE COPY OF THE PROSECUTION PETITION DATED 21.5.1997 EXT.P2 TRUE COPY OF OBJECTION FILED BY PETITIONER TO EXT.P1 EXT.P3 TRUE COPY OF IA NO.549/2008 DATED 12.6.2008 EXT.P4 TRUE COPY OF ORDER DATED 29.11.2008 EXT.P5 TRUE COPY OF EXECUTION PETITION DATED 2.4.2009 EXT.P6 TRUE COPY OF COMMISSION REPORT DATED 28.10.2009 EXT.P7 TRUE COPY OF THE JUDGMENT DATED 19.12.2009 IN CMA NO.1/2009 ON THE FILES OF SUB COURT, PALA. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.6716 & 9909 of 2010 -------------------------------------- Dated this the 27th day of October, 2010. JUDGMENT These petitions arise from orders passed on the trial and execution side in O.S.No.190 of 1999 of the court of learned Munsiff, Erattupetta. W.P.(C) No.6716 of 2010 is filed by defendant No.1 while W.P.(C) No.9909 of 2010 is filed by the plaintiff. Parties, for the sake of convenience are referred as plaintiff and defendant as in the trial court. 2. Plaintiff filed the suit for a decree for mandatory and prohibitory injunction claiming that he has a right of way through item No.2 for access to item No.1 belonging to him and described in the plaint schedule. There was an interim order of injunction restraining defendant No.1 from causing obstruction to item No.2. While so, alleging that the order of injunction was violated, plaintiff filed I.A.No.232 of 1999 under Order XXXIX, Rule 2A of the Code of Civil Procedure (for short, “the Code”). Evidence was recorded on that application and the learned Munsiff found that there was violation of the order of injunction. Accordingly there was an order to detain defendant No.1 in the civil prison for three months. He was also directed to pay cost of Rs.2,000/- to the plaintiff. Defendant No.1 challenged that order in C.M.A.No.1 of 2009 but without success. That judgment is under challenge in W.P.(C) No.6716 of 2010. Though right claimed by plaintiff was denied by defendant No.1, the suit was WP(C) No.6716 & 9909/2010 2 decreed in favour of plaintiff and against defendant No.1( Ext.P1 in W.P.(C) No.9909 of 2010). As per that judgment and decree defendant No.1 was directed to remove obstruction caused to item No.2, road (obstruction was identified by the Advocate Commissioner as item No.5 in Ext.C1(a), plan) within a period of two months and if defendant No.1 failed to do so, plaintiff was permitted to remove the obstruction through court. There was also a decree for prohibitory injunction restraining defendant No.1 from causing any alteration to item No.2, road or causing obstruction to the user of same by the plaintiff. That judgment and decree have become final. Plaintiff put the decree into execution in E.P.No.18 of 2009. Plaintiff wanted existing obstruction on item No.2 to be removed. In the executing court an Advocate Commissioner was appointed to remove the obstruction and the Advocate Commissioner filed report (Ext.P6 in W.P.(C) No.9909 of 2010) which was not that much favourable to the plaintiff. Advocate Commissioner expressed some difficulty in identifying item No.2, way. Thereon, plaintiff filed E.A.Nos.51 of 2009 to 53 of 2009 to set aside Ext.P6, report, to appoint the Advocate Commissioner who had prepared Exts.C1 and C1(a) on the trial side and to give direction to the Advocate Commissioner in the matter of identification of item No.2. Those applications were resisted by defendant No.1 mainly disputing identity of item No.2 and contending that there is no reason to interfere with Ext.P6, report submitted by the Advocate Commissioner. Executing court accepted that contention of defendant No.1 and dismissed E.A.Nos.51 of 2009 to 53 of 2009. WP(C) No.6716 & 9909/2010 3 Later, I am told, the execution petition itself was dismissed in view of dismissal of E.A.Nos.51 of 2009 to 53 of 2009. Ext.P10, common order dismissing the said applications is under challenge at the instance of plaintiff, in W.P.(C) No.9909 of 2010. It is contended by learned counsel for plaintiff that going by Ext.P6, report and also the materials on record there was no difficulty in identifying item No.2 particularly as Ext.C1(a), plan prepared by the Advocate Commissioner with the assistance of Surveyor on the trial side was available. It is also contended that executing court ought to have set aside Ext.P6, report and appointed the same Commissioner who prepared Ext.C1(a), plan for proper identification of item No.2 and granted relief to the plaintiff. According to the learned counsel, there is no reason to interfere with the order of learned Munsiff on I.A.No.232 of 1999 as confirmed in C.M.A.No.1 of 2009. Learned counsel for defendant No.1 per contra, contends that there is no proper identification of item No.2 as revealed from Ext.P6, report in which case, finding of learned Munsiff on I.A.No.232 of 1999 that defendant No.1 has violated the order of temporary injunction itself cannot stand. It is contended by learned counsel that Ext.P10 (in W.P.(C) No.9909 of 2010) does not call for interference. 3. No doubt, learned Munsiff found on I.A.No.232 of 1999 that there was violation of order of temporary injunction and that was confirmed in C.M.A.No.1 of 2009. But it would appear from Ext.P6, report obtained on the execution side that there was some doubt expressed by the Advocate Commissioner as to the identification of the way (item No.2). In Ext.P6, report WP(C) No.6716 & 9909/2010 4 Advocate Commissioner has stated that he was not able to find any such obstruction as item No.5 on the disputed way and that when the disputed way was restored, it was found that there were improvements aged upto ten years in the said portion. It is for the said reason that Ext.P6, report was sought to be set aside by the plaintiff vide E.A.No.51 of 2009 and to depute the same Advocate Commissioner who prepared Ext. C1 and C1(a) on the trial side to identify item No.2 as shown in Ext.C1(a) and remove the obstruction. 4. It is not disputed that on the trial side, item No.2 was identified by an Advocate Commissioner with the assistance of a Surveyor as seen from Ext.C1(a), plan (copy of which is produced as Ext.P2 in W.P(C) No.9909 of 2010). The decree was passed accepting Ext.C1and C1(a) and that has become final. Hence parties cannot raise any dispute as to the identification of item No.2 as per Exts.C1 and C1(a) marked on the trial side. The function of executing court was to execute the decree and remove obstruction if found on item No.2 as identified in Exts.C1 and C1(a) and not to appoint another Advocate Commissioner to identify the way. Viewed in that line, executing court ought to have allowed E.A.No.52 of 2009 and appointed the same Commissioner who prepared Ext.C1 and C1(a) on the trial side (if he was available and if that Commissioner was not available another Advocate Commissioner was to be appointed to remove the obstruction, if any from item No.2 as identified in Ext.C1(a)) Since as revealed from Ext.P6 there is some dispute as to item No.2, I do not find it proper to sustain the order of learned WP(C) No.6716 & 9909/2010 5 Munsiff as confirmed by learned Sub Judge in C.M.A.No.1 of 2009 directing detention of defendant No.1 in civil prison and ordering him to pay cost. The proper course is to set aside all impugned orders and remit the matter to the court of learned Munsiff to be dealt with on the trial and execution side, respectively. What is to be done is to appoint the same Advocate Commissioner (if that Advocate Commissioner is not available another Advocate has to be appointed) who prepared Exts.C1 and C1(a) if he is available and if necessary appoint the Surveyor also to find whether there is any obstruction caused to item No.2 of plaint schedule as identified in Ext.C1(a) and remove whatever obstructions are found on that way. It will be open to the learned Munsiff on the trial side to decide whether as alleged in I.A.No.232 of 1999 there was any obstruction caused by defendant No.1 in violation of the order of temporary injunction on item No.2 as identified in Ext.C1(a). Parties will have opportunity to adduce evidence in support of their contention. Resultantly, these petitions are disposed of as under: (A) W.P.(C) No.6716 of 2010: This Writ Petition is allowed in the following lines: WP(C) No.6716 & 9909/2010 6 Order of learned Munsiff, Erattupetta on I.A.No.232 of 1999 in O.S.No.190 of 1999 as confirmed by learned Sub Judge, Pala in C.M.A.No.1 of 2009 is set aside and I.A.No.232 of 1999 is remitted to the court of learned Munsiff for fresh decision in the light of observations made above after giving opportunity to both sides to adduce evidence, if any. (B) W.P.(C) No.9909 of 2010: This Writ Petition is allowed in the following lines: (a) Ext.P10, order dismissing E.A.Nos.51 of 2009 to 53 of 2009 in E.P.No.18 of 2009 in O.S.No.190 of 1999 of the court of learned Munsiff, Erattupetta is set aside. (b) E.A.Nos.51 of 2009 to 53 of 2009 are allowed. Executing court is directed to appoint the same Advocate Commissioner who prepared Exts.C1 and C1(a) on the trial side (if he is available and if not, appoint another Commissioner) and if necessary with the assistance of a Surveyor, and direct removal of whatever obstructions, if any are found in item No.2 of the decree schedule as identified in Ext.C1(a), plan marked on the trial side. WP(C) No.6716 & 9909/2010 7 (c) The dismissal/closure if any of E.P.No.18 of 2009 (in O.S.No.190 of 1999) consequent to Ext.P10, common order will stand set aside and that execution petition restored to file. (d) If in tune with the judgment and decree if any direction is required to be issued to the Advocate Commissioner and Surveyor, it will be open to the executing court to do so. (e) Learned Munsiff shall as far as possible dispose of the proceedings simultaneously though not jointly. Parties shall appear in the trial/executing court on 30.11.2010. THOMAS P.JOSEPH, Judge. cks