IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 13305 of 2010(K) ------------------------------------------------- PETITIONER(S): --------------------- T.K.NAMMAD, THACHARU PADIKAL KOLAKATTIL, S.S.ROAD, VENGARA, MALAPPURAM DISTRICT. BY ADV. SRI.AUGUSTINE JOSEPH SRI.K.S.ROCKEY RESPONDENT(S): ------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, MALAPPURAM. 2. THE SUB INSPECTOR OF POLICE, VENGARA, MALAPPURAM. 3. KUNJUMOHAMED, S/O. KUNJUMOIDU, PULIKAL HOUSE, S.S. ROAD, VENGARA, MALAPPURAM. 4. KUNJEETHU, S/O. MOHAMMED ALIAS BAPU HAJEE, THACHARA PADIKAL KOLAKATTIL, S.S.ROAD, VENGARA, MALAPPURAM. R1 & R2 BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS. ADV. SRI.K.K.MOHAMED RAVUF FOR R3 SRI.S.DILEEP FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010, ALONG WITH WP(C). NO.14956 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.13305 OF 2010 K PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF PLAINT IN OS.NO.92/2010 PENDING BEFORE THE MUNSIFF COURT, PARAPPANANGADI. EXT.P2 TRUE COPY OF PETITION DATED 11.4.2010 SUBMITTED BEFORE THE SECOND RESPONDENT BY THE PETITIONER. EXT.P3TRUE COPY OF PETITION DATED 13.4.2010 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITIONER. RESPONDENTS' EXHIBITS: EXT.R3(1) TRUE COPY OF THE INJUNCTION APPLICATION AND THE ORDER THEREON DATED 3.3.2010 IN I.A.NO.590/2010 IN O.S.NO.61 OF 2010 OF THE MUNSIFF COURT, PARAPPANANGADI. EXT.R3(2) TRUE COPY OF THE COMMISSION REPORT AND SKETCH. // True Copy // PS to Judge K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NOS. 13305 OF 2010 K & 14956 OF 2010 T --------------------------------------------------- Dated this the 31st May, 2010 JUDGMENT K.M. Joseph, J. Since there is some connection between these cases, we dispose of the same by a common Judgment. 2. W.P.(C).No.13305 of 2010 is filed seeking the following reliefs: “i) Issue a writ of mandamus to the 2nd respondent not to interfere in the civil case pending between the petitioner and respondents 3 and 4 and not to harass the petitioner at the instance and influence of respondents 3 and 4 to demolish petitioner's compound wall; ii) Issue a writ of mandamus to respondents 1 and 2 to give proper and adequate police protection to the life and property of the petitioner and his family members; WPC.NOS.13305 & 14956/2010 2 iii) Issue a writ of mandamus to the first respondent to consider and take appropriate action on Exts.P2 and P3 petitions.” 3. briefly put, the case of the petitioner in the said case is as follows: Petitioner is the owner in possession of 11 ½ cents of land. Since respondents 3 and 4 are neighbours, they had separate pathways to their houses. Recently, they approached the petitioner and requested him to demolish some portion of the compound wall on the southern side of the petitioner's land and to construct a road through the land. When the petitioner refused, respondents 3 and 4 threatened bim that they will forcibly demolish the compound wall of the petitioner. Petitioner approached the Munsiff Court, Parappanangadi on 5.4.2010 for an injunction restraining respondents 3 and 4 not to demolish the compound wall. Ext.P1 is the plaint. A Commission Application was allowed and Report is sought for. In the meantime, respondents 3 and 4 came to the spot and WPC.NOS.13305 & 14956/2010 3 demolished some portion of the compound wall of the petitioner. Petitioner filed Ext.P2 petition. He also filed Ext.P3 complaint, but there is no action. Hence the aforesaid prayers. 4. A Counter Affidavit is filed by the third respondent, who is none other than the petitioner in W.P.(C). No.14956/2010. Therein, it is, inter alia, stated as follows: It is an abuse of process of the Court. Petitioner and fourth respondent are close relations, the petitioner being the son of the elder brother of the fourth respondent. Fourth respondent wanted to obstruct the way by constructing a wall. Third respondent filed a Suit as OS.No.61 of 2010 before the Munsiff Court, Parappanangadi for restraining the fourth respondent from blocking the way by constructing a compound wall. Ext.R3(1) is an injunction application and the order therein. It has not been modified or varied. Ext.R3(2) is a Commission Report and Sketch. WPC.NOS.13305 & 14956/2010 4 W.P.(C).NO.14956 OF 2010 I 5. Briefly put, the case of the petitioner is as follows: There is a way used by the petitioner and fifteen house holders to access to the S.S. Road from time immemorial. The first respondent wanted to annex the above way. Petitioner filed OS.No.61 of 2010 and Ext.P1 is the ad interim injunction order obtained. The Commissioner filed Ext.P2 Report. Exts.P1 and P2 correspond to Exts.R3(1) and R3(2) produced along with the Counter Affidavit in W.P.(C).No.13305/2010. The second respondent is a relative of the first respondent and they are attempting to block the way. Petitioner filed a petition for violation of the injunction order before the third respondent. The second respondent, therefore, caused to file Ext.P4 Suit. Petitioner seeks a writ of mandamus directing the third respondent to afford adequate and meaningful protection from respondents 1 and 2 and their men not to block the entry to S.S. Road and thus comply with Ext.P1 order. WPC.NOS.13305 & 14956/2010 5 6. We heard the learned counsel for the petitioners, learned Government Pleader and also the learned counsel appearing on behalf of the first respondent in W.P.(C). No.14956/2010. 7. Learned counsel for the petitioner in W.P.(C).No.13305 of 2010 would limit the relief to the first prayer. According to him, the Sub Inspector of Police is interfering in a civil suit and attempting to demolish the compound wall. He would further submit that that the matter is coming up on 3.6.2010 before the Munsiff Court, Parappanangadi. 8. Shri K.K. Mohammed Ravuf, learned counsel appearing for the petitioner in W.P.(C).no.14956/2010, on the other hand, reiterates the allegations in his Writ Petition and the Counter Affidavit filed. He would submit that actually going by the dates mentioned in the application for injunction and the Suit filed by his client, he had approached the Court and obtained injunction and he relied on the contents of the Report of the WPC.NOS.13305 & 14956/2010 6 Advocate Commissioner and he would contend that it is obvious that the petitioner in the other Writ Petition, the case set up by the defendant in the Suit filed by him and the same is borne out by the averments in the plaint in the Suit filed by the other writ petitioner. He would also point out that the dates on which the Suit is filed is after the date of the Commission Report and it would show that the allegation that portion of the compound wall was demolished would only probabilise his case that there is actually a way. He would also point out that the petitioner is not a party to the Suit filed by him and an application under Order 39 Rule 2A may not lie as a person eo nominee party and fifteen families are using the pathway and it is only in such circumstances that the Court may not interdict the Police Officer from stepping in and enforcing the order of the civil court. 9. We notice that the order which has to be enforced in W.P.(C).No.14956/2010 is an interim ex parte order. We are of the view that going by the decisions of this Court that it is not appropriate for this Court to direct enforcement of such an order WPC.NOS.13305 & 14956/2010 7 by directing police protection. We further notice that the matter is coming up on 3.6.2010 before the civil court in the Suit filed by the petitioner in W.P.(C).No.13305/2010. As far as the question of interdicting the police from interfering with the civil dispute which is the first prayer sought in W.P.(C). No.13305/2010, we are of the view that the said request is justified and we take note of the submission of the learned Government Pleader that petitions have been received from both sides and the police will not interfere in the matter and they have advised the parties to approach the civil court and get orders from there. We record the submission of the learned Government Pleader that the Police Officer will not interfere with the civil dispute between the parties. In view of the fact that there is clear connection between the Suits filed by both the parties, we are of the view that it may be more appropriate that both Suits are heard together. It is open to the petitioner in W.P.(C).No.14956/2010 to file applications in this regard before the Munsiff Court. In view of the fact that the petitioner in W.P. WPC.NOS.13305 & 14956/2010 8 (C).No.14956 of 2010 has a case that there is a blocking of the way, the matters shall be disposed of at the earliest. The Writ Petitions are disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge