IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP(C).No. 2046 of 2011(O) -------------------------------- OS.507/2011 of ADDL.SUB COURT,KOLLAM .................... PETITIONER/2ND DEFENDANT ------------------------------------ RAJESWARI, D/O.LAKSHMI, AGED 47, HARIJA MANDIRAM, NEW ISWARYA NAGAR, VADAKKEVILA, KOLLAM. BY ADVS. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT(S): PLAINTIFFS/1ST DEFENDANT -------------------------------------------------------- 1. NISHANTH, S/O.MURALEEDHARAN, ISWARYA NAGAR, VADAKKEVILA, KOLLAM. 2. NISHAD, S/O.NISHANTH, S/O.MURALEEDHARAN, ISWARYA NAGAR, VADAKKEVILA, KOLLAM (REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MURALEEDHARAN, RESIDING AT ISWARYA NAGAR, VADAKKAVILA, KOLLAM - 691 010. 3. SARALAMANI, D/O.LAKSHMI, SREYAS, ISWARYA NAGAR, VADAKKEVILA, KOLLAM - 691 010. R1 & R2 BY ADV. SRI.S.ARUN RAJ THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2046/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. 507/2011 OF THE SUB COURT, KOLLAM-1. P2(a):PHOTOGRAPH OF THE EXISTING PATHWAY. P2(b):PHOTOGRAPH OF THE EXISTING PATHWAY. P2(c):PHOTOGRAPH OF THE EXISTING PATHWAY. P2(d):PHOTOGRAPH OF THE EXISTING PATHWAY. P3: COPY OF THE SALE DEED DATED 26/05/2011. P4: COPY OF THE INJUNCTION APPLICCATION DATED 24/06/2011. P5: COPY OF THE ORDER DATED 24/06/2011 SUB COURT, KOLLAM. P6: COPY OF THE NOTICE ISSUED BY THE COMMISSIONER. P7: PHOTOGRAPH SHOWING THE WAY TOWARDS THE PANCHAYATH ROAD. P8: PHOTOGRAPH SHOWING THE WAY TOWARDS THE PANCHAYATH ROAD. P9: PHOTOGRAPH SHOWING THE PANCHAYATH ROAD AND STARTING POINT OF THE WAY. P10: PHOTOGRAPH SHOWING THE WAY WITH THE CAR BY WHICH THE COMMISSIONER CAME THERE. P11: PHOTOGRAPH SHOWING THE WAY WITH THE CAR BY WHICH THE COMMISSIONER CAME THERE. P12: PHOTOGRAPH SHOWING THE WAY WITH THE CAR BY WHICH THE COMMISSIONER CAME THERE. P13: PHOTOGRAPH SHOWING THE WAY WITH THE CAR BY WHICH THE COMMISSIONER CAME THERE. P14: PHOTOGRAPH OF THE ADVOCATE OF THE PETITIONER CONVINCING THE COMMISSIONER ABOUT THE STAY ORDER OF THIS HONOURABLE COURT. svs ...............2/-.... ...2... OPC. NO.2046/2011 P15: PHOTOGRAPH OF THE ADVOCATE OF THE PETITIONER CONVINCING THE COMMISSIONER ABOUT THE STAY ORDER OF THIS HONOURABLE COURT. P16: PHOTOGRAPH OF THE ADVOCATE OF THE PETITIONER CONVINCING THE COMMISSIONER ABOUT THE STAY ORDER OF THIS HONOURABLE COURT. P17: PHOTOGRAPH OF THE ADVOCATE OF THE PETITIONER CONVINCING THE COMMISSIONER ABOUT THE STAY ORDER OF THIS HONOURABLE COURT. P18: PHOTOGRAPH SHOWING THE STARTING OF THE WAY WITH THE HOUSE OF THE PETITIONER. RESPONDENT'S EXHIBITS: R1 A: COPY OF THE SETTLEMENT DEED DATED 14/08/1989 EXECUTED BY THE MOTHER LAKSHMI IN FAVOUR OF THE PETITIONER. R1 B: COPY OF THE WILL EXECUTED BY THE MOTHER LAKSHMI. R1 C: COPY OF THE SETTLEMENT DEED DATED 10/08/2005 EXECUTED BY SRI.MURALEEDHARAN IN FAVOUR OF THE 1ST RESPONDENT. R1 D: COPY OF THE SETTLEMENT DEED DATED 10/08/2005 EXECUTED BY SRI.MURALEEDHARAN IN FAVOUR OF THE 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2046 of 2011 --------------------------------------- Dated this 21st day of July, 2011 JUDGMENT Petitioner is the second defendant in O.S.No.507 of 2011 of the Court of learned Additional Sub Judge, Kollam and second respondent in I.A.No.2216 of 2011. That is a suit filed by respondents 1 and 2 against petitioner and third respondent for a declaration that petitioner and third respondent have no right to obstruct respondents 1 and 2/plaintiffs constructing a compound wall on the western side of plaint schedule property after leaving 5 links vide pathway. On I.A.No.2216 of 2011 learned Sub Judge granted ad-interim order of injunction without notice to the petitioner or third respondent to remain in force till 25.07.2011. On service of the order, petitioner was rushed to this Court requesting to invoke power under Article 227 of the Constitution contending that the order has the effect of a decree in the suit and that in the meantime if respondents 1 and 2 constructed boundary wall, that will affect the right of petitioner and third respondent and defeat an opportunity to contest the suit in the appropriate manner. O.P(C).No.2046 of 2011 -: 2 :- 2. Learned counsel for respondents 1 and 2 contended that entitlement of petitioner and third respondent is only for a way having width of 5 links even as per the document of title relied on by them and hence there is nothing illegal in the learned Additional Sub Judge granting injunction as prayed for leaving a way having width of 5 links. 3. This Court while admitting the original petition granted an interim stay of the order on I.A.No.2216 of 2011 on 28.06.2011 which is being continued by extension. Having heard learned counsel on both sides, I am inclined to think that operation of the order under challenge has to remain in abeyance until I.A.No.2216 of 2011 is finally disposed of by the learned Additional Sub Judge. I bear in mind that petitioner or the third respondent has a remedy of requesting learned Additional Sub Judge to dispose of I.A.No.2216 of 2011 as early as possible since interim order of injunction has been granted without hearing them, Rule 3A of Order XXXIX of the Code of Civil Procedure requires the trial court to make every endeavour to dispose of the application within 30 days from the date on which injunction was granted. I also bear in mind that petitioner and third respondent has the remedy of requesting learned Additional Sub Judge to discharge, vary or set aside the order of injunction as provided under Rule 4 of Order XXXIX of the code. In these O.P(C).No.2046 of 2011 -: 3 :- circumstances, it is appropriate that interim order of stay granted by this Court on 28.06.2011 and extended thereafter remain in force until learned Additional Sub Judge has disposed of I.A.No.2216 of 2011. The parties can urge their contentions before learned Additional Sub Judge. I make it clear that I have not expressed any opinion either way on the acceptability or otherwise of the contentions raised by the parties or merit of the claim put by either side which the learned Additional Sub Judge shall decide. Resultantly this original petition is disposed of directing that interim order of stay granted by this Court on 28.06.2011 and extended thereafter will remain in force until I.A.No.2216 of 2011 (in O.S.No.507 of 2011) is disposed of by the learned Additional Sub Judge, Kollam. Parties may request learned Additional Sub Judge to expedite disposal of the said application. (THOMAS P JOSEPH, JUDGE) Sbna/-