IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 OP(C).No. 2099 of 2011(O) -------------------------------------- AGAINST THE ORDER DATED 04/04/2011 IN IA 965/2011 IN CMA.NO. 11/2011 of SUB COURT, OTTAPPALAM .................... PETITIONER: -------------------- ESSAR TELECOM INFRASTRUCTURE PVT.LTD., ESSAR HOUSE, 11, KK MARG, MAHALAKSHMI, MUMBAI PRESENTLY KNOWN AS M/S.ATC (AMERICAN TOWER CORPORATION) TELECOM TOWER CORPORATION PVT.LTD. 36/2624, FIRST FLOOR, CHERUAMANGALATH HOUSE, SHENOY ROAD, COCHIN, REP.BY DEPUTY MANAGER.LEGAL, BABU PATTATHANAM. BY ADVS. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S): ---------------------------- 1. MOLY WILSON, W/O.GEORGE WILSON, AGED 49 YEARS, ,MOUNT CARMEL, 24/257,25/146, MUNDUMUKHA AMSOM, PARUTHIPRA DESOM, SHORNOOR II VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 121. 2. LESLI PETER, S/O.BENJAMIN PETER, AGED 68 YEARS, PETER'S HOUSE, 24/165B MUNDUMUKHA AMSOM, PARUTHIPRA DESOM, SHORNOOR II VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 121. 3. DR.V.ANIL KUMAR, FATHER'S NAME NOT KNOWN, SN TRUST SCHOOL, MUNDAMUKA AMSOM PARUTHIPRA DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 121. 4. BINU.P.R., (FATHER'S NAME NOT KNOWN) AGED ABOUT 46 YEARS, PRINCIPAL, SN TRUST SCHOOL, MUNDAMUKA AMSOM, PARUTHIPRA DESOM. R3 & R4 BY ADV. SRI.A.N.RAJAN BABU THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2099/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.122/10 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM. P2 COPY OF THE APPLICATION, IA 701/2010 IN O.S.NO.122/10 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM. P3 COPY OF THE ORDER DATED 8/4/2010 IN IA.NO.701/2010 IN OS NO.122/10 OF THE MUNSIFF COURT, OTTAPALAM. P4 COPY OF THE REPORT DATED 12/5/2010 OF THE ADVOCATE COMMISSIONER APPOINTED BY MUNSIFF COURT, OTTAPALAM. P4(A) COPY OF THE COMMISSION REPORT DATED 13/6/2011 APPOINTED BY MUNSIFF COURT, OTTAPALAM. P4(B) COPY OF THE COMMISSION REPORT DATED 13/6/2011 APPOINTED BY MUNSIFF COURT, OTTAPALAM. P5 COPY OF THE PETITION IA NO.1738/2010 FILED BY THE PETITIONER IN OS NO.122/2010. P6 COPY OF THE PETITION IA NO.2435/10 IN OS NO.122/10 FILED BY THE PETITIONER. P7 COPY OF THE OBJECTION FILED BY THE DEFENDANTS IN OS NO.122/10 TO THE IA 2435/2010. P8 COPY OF THE ORDER IN IA NO.2435/10 IN OS NO.122/10 OF THE MUNSIFF COURT, OTTAPALAM. P9 COPY OF THE APPEAL CMA NO.11/2011 FILED BY THE PETITIONER BEFORE THE SUB COURT, OTTAPALAM. P10 COPY OF THE PETITION IA NO.965/2011 IN CMA NO.11/2011 FILED BY THE PETITIONER BEFORE THE SUB COURT, OTTAPALAM. P11 COPY OF THE OBJECTION TO IA NO.965/2011 IN CMA NO.11/2011 FILED BY THE RESPONDENTS THEREIN. P12 COPY OF THE ORDER DATED 4/4/2011 IN IA 965/2011 IN OS NO.11/2011 OF THE MUNSIFF COURT, OTTAPALAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2099 of 2011 --------------------------------------- Dated this 12th day of July, 2011 JUDGMENT Petitioner is the third additional plaintiff in O.S.No.122 of 2010 of the Court of learned Munsiff, Ottappalam. Originally that suit was filed by respondents 1 and 2 for a decree for prohibitory injunction against respondents 3 and 4 against the latter obstructing their use of plaint schedule road which they claimed, is a municipal road and hence the public have right of access. Learned Munsiff passed Ext.P2, order of status quo. While so, petitioner got impleaded as the third plaintiff claiming that he is a licensee under the first plaintiff to install mobile tower in the property of first plaintiff and it has to carry materials for installation of mobile tower through the road in question. Petitioner filed I.A.No.2435 of 2010 for an order of injunction to restrain respondents 3 and 4 from causing any obstruction. Respondents 3 and 4 contended that the road in question is a private road belonging to the S.N Trust which is a registered society and which is to be represented by its Secretary, third respondent is only the Chairman of a local committee of the S.N Trust incompetent to represent the said Trust and the fourth O.P(C).No.2099 of 2011 -: 2 :- respondent is only the Principal of the school to which the road in question leads. Learned Munsiff dismissed the application for injunction. Petitioner filed C.M.A.No.11 of 2011 before learned Sub Judge, Ottappalam and moved I.A.No.965 of 2011 for an order of interim, prohibitory injunction. That application was dismissed by the learned Sub Judge which is challenged in this proceeding. Learned counsel has contended that notwithstanding the nature of the road in question what is prayed for in I.A.No.965 of 2011 is only that respondents 3 and 4 shall not cause obstruction to the petitioner carrying materials to the property of first plaintiff for installation of mobile tower. It is also pointed out that the courts below proceeded on a wrong footing that at the entrance portion of the road in question there is a gate. Report submitted by the Advocate Commissioner does not show that ehre is any such gate. There is only an arch placed over the road mentioning the name of the school belonging to the S.N.Trust. Learned counsel for respondents 3 and 4 contend that the road is a private road belonging to the S.N.Trust and leading to its school. 2. The main thrust of argument advanced by learned counsel for respondents 3 and 4 is that the road in question O.P(C).No.2099 of 2011 -: 3 :- belongs to the S.N Trust which is not a party to the suit. It is contended that respondents 3 and 4 are not competent to represent the S.N.Trust. 3. It is elementary that no order of injunction can be passed to affect a third person who is not a party to the proceeding. In view of the contention raised by respondents 3 and 4, I think it was appropriate for petitioner and other plaintiffs, if they are so advised to implead the S.N.Trust also as a party to the proceeding. However, these are matters which the trial court has to consider and if petitioner and other plaintiffs moved appropriate applications. 4, At this stage, learned counsel for petitioner has requested permission to withdraw I.A.No.2435 of 2010 as well as C.M.A.No.11 of 2011 without prejudice to the right of petitioner or other plaintiffs to move fresh application before the trial court after impleading necessary parties. Learned counsel submitted that since the order on I.A.No.2435 of 2010 is under challenge in C.M.A.No.11 of 2011, that order has not become final and hence this Court can give permission to the petitioner to withdraw I.A.No.2435 of 2010. I have heard learned counsel for respondents 3 and 4 also in that regard. O.P(C).No.2099 of 2011 -: 4 :- 5. Having regard to the circumstances stated by learned counsel, I am inclined to allow the request. Resultantly this original petition is disposed of permitting petitioner to withdraw I.A.No.2435 of 2010 without prejudice to the right, if any of petitioner to implead necessary parties to the suit and move fresh application for injunction. Learned counsel submits that petitioner would take necessary steps to withdraw C.M.A.No.11 of 2011 of the Court of learned Sub Judge, Ottappalam as well. I make it clear that if so advised it is open to the petitioner or other plaintiffs to move appropriate application for impleading necessary parties and move fresh application for injunction as circumstances warranted. I make it clear that I have not expressed any opinion on merit of the matter or the merit of applications that petitioner and other plaintiffs might prefer before learned Munsiff. (THOMAS P JOSEPH, JUDGE) Sbna/-