IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 19628 of 2008(J) -------------------------- CMA.108/2007 of II ADDL. DISTRICT COURT, THIRUVANANTHAPURAM O.S.NO.1249/2007 OF MUNSIFF'S COURT, THIRUVANANTHAPURAM .................... PETITIONER: -------------------- SKYLINE FOUNDATIONS AND STRUCTURES, VELLAYAMBALAM, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR, MR.K.LAVA. BY ADV. SRI.V.R.VENKATAKRISHNAN (SR) SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT: ----------------------- DEVARAJ, S/O.ENOSE, T.C.11/2187 (1) BERACAH MANSION, R.K.V.ROAD, VIKAS BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI.J.MARY HELP JOHN DAVID - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008 ALONG WITH WPC NO. 19117 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19628/2008 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF JUDGMENT DTD. 3/06/08 IN C.M.A.108/07 OF 2ND ADDL.DIST.COURT, THIRUVANANTHAPURAM. EXT.P2: COPY OF ORDER DTD. 24/08/07 IN I.A.NO.6251/07 OF PRL.MUNSIFF, THIRUVANANTHAPURAM EXT.P3: COPY OF LICENCE DEED DTD. 24/11/2005. EXT.P4: COPY OF I.A.NO.6251/08 IN CMA 108/07 DTD.22/01/08. EXT.P5: COPY OF OBJECTIONS TO I.A.NO.6251/08. EXT.P6: COPY OF SALE DEED NO.3264/03 DTD. 11/09/03. EXT.P7: COPY OF I.A.NO.6251/07 DTD. 05/ 7/07 IN O.S.NO.1249/07. EXT.P8: COPY OF COUNTER AFFIDAVIT IN I.A.NO.6251/07. EXT.P9: COPY OF I.A.NO.6518/07 DTD. 4/08/07. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE PERMIT WITH SITE PLAN APPROVED BY THE CORPORATION, TRIVANDRUM DTD. 05/01/2004. EXT.R2: COPY OF LAND TAX RECEIPT DTD. 08/09/2006 OF KAWDIAR VILLAGE. EXT.R3: COPY OF THE POWER OF ATTORNEY DTD. 07/10/2006. EXT.R4: COPY OF THE COMPLAINT DTD. 27/07/2007. EXT.R5: COPY OF THE COMPLAINT DTD. 30/07/2007 PREFERRED BY THE PETITIONER BEFORE THE SUB DIVISIONAL MAGISTRATE. EXT.R6: COPY OF THE VILLAGE OFFICER'S REPORT AND PLAN DTD. 08/08/2007. EXT.R7: COPY OF THE INTIMATION DTD. 02/11/2007 RECEIVED FROM THE TRIVANDRUM CORPORATION. Kss ..2/- ...2...... WPC.NO.19628/2008 J EXT.R8: COPY OF THE RECEIPT DTD. 15/12/1998 NO.E.60673/1997 OF TRIVANDRUM CORPORATION ENGINEERING SECTION ACCEPTING THE TENDER FOR MAINTENANCE. EXT.R9: COPY OF THE ADVOCATE'S NOTICE DTD. 19/11/2007. EXT.R10: COPY OF THE NOTICE DTD. 14/02/2008 RECEIVED BY THE PETITIONER FROM THE OFFICE OF CORPORATION SECRETARY. EXT.R11: COPY OF THE PETITIONER'S REPLY TO EXHIBIT R10. EXT.R12: COPY OF THE COMPLAINT AND THE RECEIPT RECEIVED THEREON DTD. 14/06/2008. EXT.R13: COPY OF THE I.A.NO.2759 OF 2008 IN C.M.A.NO.108 OF 2007 DTD. 16/06/2008 FILED BEFORE THE DISTRICT COURT, TRIVANDRUM. EXT.R14: COPY OF OBJECTION DTD. 05/07/08 FILED BY THE PETITIONER. /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 19628 OF 2008 AND W.P.(C)NO. 19117 OF 2008 ------------------------------------------ Dated this the 28th day of August, 2008 JUDGMENT Defendant in O.S.1249 of 2007 on the file of Munsiff Court, Thiruvananthapuram is the petitioner in WP(C)19628 of 2008. Plaintiff therein is the respondent. Petitioner in WP(C) 19117 of 2008 was not originally impleaded in the suit, but was subsequently impleaded on an application filed by him. Respondent filed the suit claiming decree for permanent prohibitory injunction restraining the defendant (petitioner in WP(C)19628 of 2008) from making any obstruction to the use and enjoyment of plaint B schedule pathway or effecting any construction over the pathway contending that plaint B schedule property is a public pathway maintained by the Corporation of Thiruvananthapuram and petitioner has a right to use the same. I.A.6251 of 2007 was filed for an order of temporary injunction till the disposal of suit, under Rule 1 of Order XXXIX of Code of Civil Procedure. The petition was resisted by the petitioner WP(C)19628/08 & 19117/08 2 contending that plaint B schedule property is not a public road but a private road belonging to the original owner Damodaran and respondent is not entitled to an order of temporary injunction as sought for. Petitioner in WP(C)19117 of 2008 filed an application under Order I Rule 10 of Code of Civil Procedure to implead himself in the suit as well as in I.A.6251 of 2007 contending that plaint B schedule property is not a public road but a private road belonging to him and respondent is not entitled to claim an order for temporary injunction. Learned Munsiff did not pass an order in the application filed for impleading the petitioner in WP(C)19117 of 2008 till Ext.P2 order was passed in I.A.6251 of 2007. It is submitted that, that application was allowed and he was impleaded as second defendant on 10.9.2007. Under Ext.P2 order dated 24.8.2007, learned Munsiff found that respondent failed to satisfy a prima facie case and therefore is not entitled to an order of injunction sought for. Respondent challenged that order before District Court, Thiruvananthapuram in C.M.A.108 of 2007. Second defendant was not impleaded in that C.M.A. Before the District Court respondent produced two additional documents along with WP(C)19628/08 & 19117/08 3 I.A.3501 of 2007 to receive them as additional evidence. Learned District Judge received and marked them as Ext.A4 and A5. Petitioner in WP(C)19628 of 2008 also filed Ext.P3, a deed of licence executed by the writ petitioner in WP(C) 19117 of 2008 whereunder he was granted licence to use the pathway claimed in the suit as plaint B schedule road for three months to bring the building materials to the plaint A schedule property. It was produced along with I.A.176 of 2008. Ext.P1 order in CMA shows that though the additional documents produced by the respondent were received, the additional document produced by petitioner, which is referred in paragraph 11 of the order, was not marked. Even the reference is not factually correct. Learned District Judge, finding that admission that petitioner in WP(C)19117 of 2008 is the owner of the road will not operate as estoppel against respondent from claiming that plaint B schedule property is a public road, if in fact it is a public road. Relying on Ext.A4 additional document marked which shows that the Corporation had spent money for tarring the road, it was found that it is a public road by applying Section 365 of the Muncipalities Act. Learned District Judge based on it prima WP(C)19628/08 & 19117/08 4 facie found that plaint B schedule property is a public road and granted an order directing the parties to maintain status quo, as reported in Ext.C1 report. The order is challenged by respondent in CM.A.108 of 2007 in WP(C)19628 of 2008. Second defendant, who was not impleaded in the appeal, filed WPC()19117 of 2008 for an order contending that eventhough he is the owner of the plaint B schedule property, without impleading him in the appeal, an order was passed directing to maintain status quo. 2. Learned senior counsel appearing for petitioner and the learned counsel appearing for petitioner in WP(C) 19117 of 2008 and learned counsel appearing for respondent were heard. 3. The question is whether respondent has established a prima facie case, an irreparable injury and balance of convenience in his favour warranting District Court to interfere with the order passed by the trial Court. What was contended by the respondent is that plaint B schedule property is a public road and respondent or anybody else has no right to make any construction or cause any obstruction to the road. The entire case of the respondent depends on the question whether the WP(C)19628/08 & 19117/08 5 plaint B schedule property is a public road because respondent is not claiming any other right of way through plaint B schedule property. In such circumstances, unless prima facie it is shown that plaint B schedule property is a public road, learned District Judge was not justified in granting Ext.P1 order. 4. Though learned District Judge relied on Section 365 of Muncipalities Act, without the materials and a prima facie finding that those materials relate to plaint B schedule property, it cannot be prima facie found that plaint B schedule property is a public road. At the very same time the document, which was not marked by learned District Judge and executed by respondent along with the petitioner in WP(C)19117 of 2008, establish that respondent himself admitted that plaint B schedule property is a private road belonging to Damodaran. Unless that is disproved, petitioner is not entitled to contend that it is a public road. Prima facie, in the light of the said document it is not possible to find that plaint B schedule property is a public road. In such circumstance, learned District Judge was not justified in interfering with the order passed by the learned Munsiff which was passed considering all the WP(C)19628/08 & 19117/08 6 relevant aspects in the proper perspective. In such circumstance, the order passed by learned District Judge in CMA 108 of 2007 is quashed and order of learned Munsiff in I.A.6251 of 2007 is restored. Learned Munsiff to dispose the suit expeditiously untrammeled by any observation in this judgment or Ext.P1 order. Writ petitions are disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-