IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 13351 of 2009(O) --------------------------------------- CMA.NO.5/2009 OF SUB COURT, TIRUR, OS.NO.170/2008 OF MUNSIFF COURT,PARAPPANANGADI. .................... PETITIONER: ------------------- PUTTEKKADN ABOOBAKKAR, S/O. KUNHEEN HAJI, PARAMBILPEEDIKA POST, PERUVALLUR, TIRURANGADI, MALAPPURAM DISTRICT. BY ADVS. MR.K.P.SUDHEER, SMT.P.JAYALAKSHMI. RESPONDENTS: ------------------------ 1. KOLAR VEETTIL SUKUMAR, S/O. UNNIPPANHU, PARAMBILPEEDIKA POST, PERUVALLUR, KERNALLUR, TIRURANGDI MALAPPURAM DIST. 2. KOLAR VEETTIL UNNIPPANHU, S/O. THEYYAUTTY, PARAMBILPEEDIKA, PERUVALLUR, KERNALLUR, TIRURANGDI, MALAPPURAM DISTRICT. 3. SAJAYKUMAR, S/O. UNNIPPANHU, PARAMBILPEEDIKA, PERUVALLUR, KERANALLUR, TIRURANGADI, MALAPPURAM DISTRICT. R1 TO R3 BY ADV. MR.C.M.MOHAMMED IQUABAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13351/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 170/2008 DTD. 07/07/2008 ON THE FILE OF THE MUNSIFFS COURT, PARAPPANANGADI. EXT.P.2: COPY OF THE SKETCH SHOWING THE LIE OF THE PROPERTY IN O.S. NO. 170/2008 DTD. 07/07/2008 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P.3: COPY OF THE COUNTER AFFIDAVIT DTD. 26/09/2008 IN I.A. NO. 1230/2008 IN O.S. NO. 170/2008 OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P.4: COPY OF THE SKETCH DTD. NIL. SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A. NO. 1230/2008 IN O.S. NO. 170/2008 OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P.4.A: COPY OF THE REPORT DTD. NIL SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A. NO. 1230/2008 IN O.S. NO. 170/2008 OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P.5: COPY OF THE PLAN DTD. 17/09/2008 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A. NO. 1556/08 IN O.S. NO. 170/2008 OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P.5.A: COPY OF THE REPORT DTD. 17/09/2008 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A. NO. 1556/08 IN O.S. NO. 170/2008 OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P.6: COPY OF THE ORDER DTD. 11/02/2009 IN I.A. NO. 1230/08 IN O.S. NO. 170/2008 OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P.7: COPY OF THE CMA.NO.5/09 FILED BY THE PETITIONER DTD. 20/02/2009 BEFORE THE SUBORDINATE JUDGE'S COURT, TIRUR. EXT.P.8: COPY OF THE JUDGMENT DTD. 07/04/2009 IN CMA.NO.5/09 PASSED BY SUBORDINATE JUDGE'S COURT, TIRUR. EXT.P.9: COPY OF THE ORDER DTD. 08/04/2009 IN W.P.(C).NO.12235/2009 PASSED BY THIS HONOURABLE COURT. EXT.P.10: COPY OF THE LAWYER NOTICED DTD. 14/04/2009 SENT ON BEHALF OF THE PETITIONER TO THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.13351 OF 2009 -------------------------- Dated this the 12th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Exts.P6 and P8 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. ii) Direct the respondents to maintain status quo during the pendency of the original suit (O.S No. 170/2008) on the file of the Munsiff Court, Parappanangadi). W.P.(C).No.13351 OF 2009 Page numbers iii) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioner is the plaintiff in O.S No.170 of 2008 on the file of the Munsiff Court, Parappanangadi. Suit is one for injunction both perpetual and mandatory and the respondents are the defendants. Suit was filed seeking a decree of perpetual prohibitory injunction to restrain the defendants from putting up any new structure encroaching upon the plaint scheduled property which is stated to be a public road enjoyed by the plaintiff and the public at large in the locality. A decree of mandatory injunction is also sought for to direct the defendants to redeposit the soil which is stated to have been removed by them from the road, and to restore the road as before. With W.P.(C).No.13351 OF 2009 Page numbers the suit the plaintiff moved an application for ad interim injunction as prayed for in the suit. The defendants resisted that application by filing objections. After hearing both sides, the learned Munsiff dismissed the application for interim injunction against which the plaintiff preferred an appeal before the Sub Court, Tirur. The appellate court after hearing both sides upholding the order of the learned Munsiff dismissed the application. Challenging the propriety and correctness of the judgment rendered by the appellate court a copy of which is produced as Ext.P8, the writ petition is filed invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The plaint schedule way is the only way for W.P.(C).No.13351 OF 2009 Page numbers the access of the plaintiff to his residential building and steps have now been taken for impleadment of the District Collector as an additional defendant in the suit, submits the counsel for petitioner. All along there is an order of status quo directing the parties to maintain the present condition over the road is canvassed by the learned counsel for the petitioner to submit that state of affairs be allowed to continue till disposal of the suit. On the other hand, the learned counsel for the respondents / defendants contended, at the stage when he wanted to put up a building in his property the suit was laid and prohibitory orders had been obtained restraining him from proceeding with the construction. The claim raised by the plaintiff that a public road runs through his property, according to the counsel, is devoid of any merit. W.P.(C).No.13351 OF 2009 Page numbers Whatever that be, two inferior courts have concurrently found that the plaintiff is not entitled to the discretionary relief of injunction. In exercise of the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India it will be inappropriate for this court to examine the correctness of the concurrent findings made by the two courts below unless it is shown that the findings are so perverse. Perusing the order and also judgment of the appellate court, I find the order / judgment does not suffer from jurisdictional infirmity warranting interference by a court. So far as the limited prayer canvassed by the petitioner as to maintaining of the status quo which continued even during the pendency of this writ petition I find, in the given facts of the case, such a relief cannot be granted. Not even a scrap of paper was W.P.(C).No.13351 OF 2009 Page numbers produced by the plaintiff in the suit to show that the plaint property is a public road as alleged. When basic document is lacking to prove the suit claim, it is not possible for this court to pass any order of status quo especially when two inferior courts have already held that he is not entitled to the interim injunction. I direct the learned Munsiff to dispose the suit as expeditiously as possible untrammelled by any of the observations in its order and also that of the judgment rendered by the appellate court. Subject to the above observations the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv