IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 20657 of 2008(H) -------------------------- CMA.14/2007 of SUB COURT, PERUMBAVOOR OS.219/2006 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONERS: ------------ 1. KESAVAN NAMBOOTHIRI ,KARAKKATTU ILLAM ASAMANNOOR KARA, ASAMANNOOR VILLAGE 2. VELAYUDHAN, POOTHUMMOODAN HOUSE PANICHAYAM KARA, ASAMANNOOR VILLAGE BY ADV. SRI.ROY MATHEW SRI.V.V.UNNIKRISHNAN RESPONDENTS: ------------- 1. GEEVARGHESE, KANJIRATHUMKUDY HOUSE ASAMANNOOR KARA, ASAMANNOOR VILLAGE. 2. BIJU, KANJIRATHUMKUDY HOUSE ASAMANNOOR KARA. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.20657 of 2008 ------------------------------- Dated this the 9th July, 2008. J U D G M E N T Petitioners are the plaintiffs and respondents the defendants in O.S.No.219 of 2006, on the file of Munsiff Court, Perumbavoor. The suit is for permanent prohibitory injunction and mandatory injunction. I.A.No.596 of 2007 was subsequently filed by the petitioners seeking an interlocutory mandatory injunction alleging that subsequent to the inspection of the property by the Commissioner, property was planted with rubber plants and they are to be removed. Under Ext.P11 order, learned Munsiff dismissed the application. Petitioners challenged that order before Sub Court, Perumbavoor, in C.M.A.No.14 of 2007. The learned Sub Judge under Ext.P12 order confirmed the order and dismissed the appeal. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioners was heard. W.P.(C) No.20657/2008 2 3. The argument of the learned counsel for the petitioners is that trial court and the appellate court did not property consider the facts and materials placed, and, therefore, did not grant the mandatory injunction, even though it is clear that rubber plants were planted subsequent to the institution of the suit, and that too, after inspection of the property by the Commissioner. It was argued that courts below did not properly appreciate the document which shows that property is described as 'myal nilam', and, therefore, orders are to be quashed. On hearing the learned counsel, I do not find any illegality or irregularity in the impugned orders, warranting interference in exercise of the powers of this Court under Article 227 of the Constitution of India. The question whether because of the description of the property as 'myal nilam', property is a paddy field or not cannot be decided, and it can be decided only on the evidence to be recorded in the suit. Moreover, if mandatory injunction is granted at this stage, and after trial, plaintiff is to be non suited, it would cause unnecessary hardship and avoidable difficulties to the parties. In such circumstances, petition is dismissed. Learned Munsiff is W.P.(C) No.20657/2008 3 directed to dispose the suit as expeditiously as possible, untrammelled by the observations in Exts.P11 and P12 orders. M.SASIDHARAN NAMBIAR, JUDGE nj.