IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 27538 of 2008(C) ---------------------------------------- CMA.1/2008 of D.C.& SESSIONS COURT,THODUPUZHA OS.261/2007 of MUNI-MAGI.COURT,THODUPUZHA (IA.1260/2007) .................... PETITIONER(S): -------------------------- 1. MATHEW S/O.LATE MATHAI, AGED 68 YEARS, RESIDING AT PALAMATTATHIL HOUSE, PIRALIMATTAM KARA MANAKKADU VILLAGE, THODUPUZHA TALUK. 2. FRANCIS, S/O.JOSEPH, AGED 44 YEARS, RESIDING AT ALANKOTTU HOUSE, ARIDUZHA KARA, MANAKKADU VILLAGE, THODUPUZHA TALUK. BY ADVS. MR.G.S.REGHUNATH MR.GEORGE MATHEW MR.K.RAJESH KANNAN MR.A.S.SHAMMY RAJ RESPONDENT(S): ---------------------------- 1. S.KABEER, AGED ABOUT 50 YEARS, SITHARA TRADERS, 16/1038, THOPPUMPADY,KOCHI-5. 2. SANI FRANCIS, HOLY FAITH BUILDERS AND EARTH MOVERS CONSTRUCTIONS, MAMANGALAM, PALARIVATTOM, ERNAKULAM. ADV. MR.PEEYUS A.KOTTAM FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27538/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.261/07. P2_ COPY OF THE IA. 1260/07. P3:- COPY OF THE ORDER DT. 4.12.07. P4:- COPY OF THE ORDER DT. 31.5.08. P5:- COPY OF PLAN. P6:- COPY OF THE SALE DEED 19.2.51. P7:- COPY OF THE SALE DEED DT. 30.3.99. P8:- PHOTOGRAPHS ( IN NUMBER). P9:- COPY OF THE COMMISSION REPROT 16.11.07. P10:- PHOTOGRAPH. P11:- PHOTOGRAPH. P12:- COPY OF THE COMMISSION REPORT. P13:- COPY OF THE AMENDMENT APPLICATION. TRUE COPY P.A. TO JUDGE TSS S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.27538 OF 2008 (C) ----------------------------------- Dated this the 26th day of June, 2009 J U D G M E N T The writ petition is filed by the plaintiffs in O.S.No.261/2007 on the file of the Munsiff's Court, Thodupuzha. The respondents are the defendants in that suit. Suit was one for declaration of right of easement and for injunction. Along with the suit, the plaintiffs moved an application for interim injunction, which after hearing the parties, was turned down by the learned Munsiff. The appeal preferred against that order by the plaintiffs was also unsuccessful. Impeaching the correctness and propriety of the concurrent decisions so formed by the two courts below that the plaintiffs are not entitled to the discretionary relief of interim injunction, the writ petition is filed invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. Notice given, respondents have entered appearance. I heard the counsel on both sides. It is submitted by the WPC.27538/08 2 learned counsel for the petitioners that the application for injunction was found against for the reason that there was insufficiency of pleadings regarding the right of easement claimed by them in the suit. Suit has been subsequently amended incorporating the necessary pleadings to sustain such a relief, is the plea canvassed to grant the relief claimed. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no interference with the order/judgment passed by the courts below emerges for consideration. But I direct the learned Munsiff to dispose the suit untrammelled by any of the observations made in the order passed by that court or in the judgment rendered by the District Court. Suit shall be disposed on its merit after affording reasonable opportunity to both sides to lead evidence in respect of their respective case. Writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009