IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 23057 of 2009(O) -------------------------- CMA.NOS.13, 14 AND 15/2008 of SUB COURT, TIRUR I.A.NOS.1235/08 AND 1236/08 IN OS.188/2007 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): --------------- 1. ATTAKKOYA THANGAL, S/O. SAHAL KOYA THANGA, KADALUNDI, KODAKKATTAKATH HOUSE, P.O. OTHUKKUNGAL, MALAPPURAM DISTRICT. 2. MANSOOR K.K.S. THANGAL, DO...DO.... 3. HUSSAIN, DO...DO.... 4. FARIS, DO...DO.... BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT(S): --------------- NAFEESA, W/O. KUNNAKKADAN ALIKKUTTY HAJI, KUNNAKKADAN HOUSE, P.O. OTHUKKUNGAL, MALAPPURAM DIST. ADV. SRI.K.K.MOHAMED RAVUF FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.23057 OF 2009 (O) ----------------------------------- Dated this the 26th day of August, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records leading to Exts.P1 to P6 ii. to vary Ext.P3 judgment of the Sub Court, Tirur in C.M.A.Nos.13/2008 and 14/2008 by setting aside Exts.P2 order of the Munsiff's Court, Tirur and allowing I.A.No.1235/2008 and 1236/2008 in O.S.No.188 of 2007 of the Munsiff's Court fully and iii. to set aside Ext.P4 judgment of the Sub Court, Tirur in C.M.A.No.15 of 2008 as well as Ext.P1 order of the Munsiff Court, Tirur in I.A.No.1622/2007 in O.S.No.188 of 2007. 2. Petitioners are the defendants in O.S.No.188 of 2007 on the file of the Munsiff's Court, Tirur. Suit is one for WPC.23057/09 2 declaration of the right of prescriptive easement over a pathway scheduled in the plaint and also for consequential injunction. Respondent is the plaintiff in the suit. With the suit, the respondent/plaintiff moved an application for interim injunction till its disposal. The learned Munsiff, after hearing both sides, allowed that application under Ext.P1 order. Petitioners/defendants later moved two applications, one for vacating the order of injunction granted under Ext.P1 order, and the other for an interim order of injunction restraining the plaintiff from widening the pathway and not to demolish the gate which is stated to have been put up at the entrance of the pathway. Both the applications after being heard together was dismissed by the learned Munsiff vide Ext.P2 order. Ext.P2 order was challenged by filing two appeals before the Sub Court, Tirur. The leaned Sub Judge, Tirur after hearing both sides, partly allowed one of the appeals, C.M.Appeal.No.13 of 2008, by passing an order of injunction restraining the defendants from demolishing the gate. The appeal, C.M.Appeal.No.14 of 2008 preferred against the order of injunction passed in favour of the plaintiff was dismissed. WPC.23057/09 3 The writ petition is filed challenging Ext.P3 judgment to the extent the petitioners/defendants are aggrieved in not allowing of the injunction application in favour of the respondent/plaintiff invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioners submits that the gate installed at the entrance of the pathway now remain open even during the night time, and it causes much inconvenience and difficulties to the occupants living beside the pathway. The petitioners/defendants be permitted to close the gate during night time, is the limited prayer canvassed by the learned counsel with the submission that there should be an order of injunction against the respondent/plaintiff from altering or widening the pathway. The relief so canvased by the petitioners is objected to by the counsel appearing for the respondent contending that after meticulous consideration of all the materials tendered, both the courts below have WPC.23057/09 4 concurrently found that the petitioners are not entitled to the reliefs now urged in the present petition. According to the counsel for the respondent, petitioners cannot claim any right over the pathway or over the gate. Having regard to the submissions made by the counsel on both sides and after perusing Exts.P1 and P2 orders passed by the leaned Munsiff and Ext.P3 judgment of the appellate court, I find it may not be proper and correct for this Court to examine on merit the limited reliefs claimed by the petitioners in the present petition in exercise of its visitorial jurisdiction under Article 227 of the Constitution of India. It is reported that the case is ripe for trial. A quietus to the controversy at the earliest is the need of the hour. I direct the learned Munsiff to give the suit top priority in hearing and dispose it as expeditiously as possible, untrammelled by any of the observations made in its Exts.P1 and P2 orders and Ext.P3 judgment of the learned Sub Judge, after affording reasonable opportunity to both sides to lead evidence in support of their respective case, at any rate, before 31.1.2010. WPC.23057/09 5 Writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp