IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 WP(C).No. 3040 of 2010(O) ------------------------- AGAINST THE ORDER DATED 17/12/2009 IN IA.926/2008 IN AS.49/2008 of PRINCIPAL SUB COURT,ATTINGAL .................... PETITIONER(S): ------------------------- 1. REGHU, S/O.SADANANDAN, AGED 50 YEARS, R.G.BHAVAN (GARUDANVILAKOM), KOONTHALLOOR DESOM, KIZHUVILAM VILLAGE. 2. GEETHA, D/O.RAMAKRISHNAN, DO. DO. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------------------- 1. SHAHUL HAMEED, AGED 70 YEARS, GARUDANVILAKOM VEEDU, KOONTHALLOOR DESOM, KOONTHALLOOR VILLAGE. 2. HABUFA BEEVI, W/O.SHAHUL HAMEED, DO. DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.3040 of 2010 = = = = = = = = = = = = = = Dated this the 30 th day of January, 2010 JUDGMENT The writ petitioners are the plaintiffs in O.S.No.430/2001 on the file of the Munsiff's Court, Attingal. The said suit was one for prohibitory and mandatory injunction. The defendants had filed a counter claim seeking a direction to cut and remove a coconut tree standing in the property of the petitioners/plaintiffs. The trial court dismissed the suit but decreed the counter claim directing the cutting and removing of the coconut tree standing in the petitioners' property. The petitioners filed A.S.No.49/2008 before the Sub Court, Attingal. Along with the appeal, I.A.No.926/2008 was filed for stay of execution of the decree in the counter claim. The lower appellate court namely Sub court, Attingal dismissed the application for stay. Aggrieved by the dismissal, the petitioners filed W.P(c)No.21327/2009 before this Court. As per Ext.P1 W.P.(c)No.3040 of 2010 2 judgment dated 25.8.2009, this Court directed the lower appellate court to depute an Advocate Commissioner and to dispose of I.A.No.926/2008 again after considering the report of the Commissioner. Thereafter, the lower appellate court issued a Commission who filed his report produced as Ext.P2 herein. Except stating that there is the likelihood of coconuts both tender and ripe and cadjan leaves falling on the house and appurtenant land of the defendants, the Commission has not stated that there is any likelihood of the coconut tree falling on the property of the defendants. However, noting the above facts, the court below again, as per Ext.P3 order dated 17.12.2009 dismissed I.A.No.926/2008. Hence this writ petition by the plaintiffs/writ petitioners. 2. The Commissioner has noted in Ext.P2 report that the coconut tree in question is tied to other trees using a wire rope which is rusted and having joints. This means that even after this Court permitted the petitioners to take W.P.(c)No.3040 of 2010 3 out a Commission to ascertain whether the tree in question is dangerously leaning towards the house of the defendant, they had not taken sufficient precaution against the apprehended damage. The petitioners may get the coconut tree in question tied by using sufficiently strong and new wire rope. They may also provide sufficient protection against the falling of coconuts and cadjan leaves on the property of the defendant. After taking such precaution and preventive measures, within two weeks from today, the petitioners can again move the court below for the issue of a Commission within three weeks from today and satisfy the court that the danger apprehended by the defendants is really not there. They may again move the court below either for a stay of the decree passed by the trial court or for final disposal of the appeal and the appellate court shall then either dispose of the application for stay or the appeal itself in accordance with law. Ext.P3 order will not stand in the way of the petitioner moving the lower appellate court W.P.(c)No.3040 of 2010 4 again to take out the steps mentioned above. The learned counsel for the petitioners submits that they will take the steps within two weeks from today. The execution of the decree passed by the appellate court shall not be proceeded with for a period of one month from today. If, however, the coconut tree in question falls and causes damage to the property of the defendants, it goes without saying that the petitioners will be liable for the consequences thereof. This writ petition is disposed of as above. Dated this the 30th day of January, 2010. V. RAMKUMAR, JUDGE sj