IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).NO. 27501 OF 2009(O) -------------------------- CMA.10/2009 OF DISTRICT COURT, MANJERI .................... PETITIONER(S): --------------- MANKADA SAIDALAVI,S/O.KUTTU HAJI, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- 1. MANKADA HUSSAIN,S/O.MOHAMMED HAJI, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. 2. JAMSHEELA,D/O.KOPPILAN MOHAMMED, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. 3. MANKADA MOOSA,S/O.MOHAMMED HAJI, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. 4. AHAMMEDKUTTY,S/O.MOHAMMED HAJI, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. 5. MANKADA MAMMUDU,S/O.MOHAMMED HAJI, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. 6. MANKADA MOIDEEN HAJI,S/O.MOHAMMED HAJI, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. 7. PATHUMMU,D/O.MOHAMMED HAJI, THENNALA AMSOM,APLA DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT. ADV. SRI.T.V.GEORGE FOR R1&2 SRI.JIMMY GEORGE (THADATHIL) FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/05/2010 ALONG WITH WPC NO. 30217 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.27501 of 2009 and W.P(C) No.30217 of 2009 ==================================== Dated this the 31st day of May, 2010 J U D G M E N T These Writ Petitions arise from judgment dated 26.8.2009 in C.M.A. No.10 of 2009 of the court of learned District Judge, Manjeri which in turn arose from the order passed by the learned Sub Judge, Tirur on I.A.No.317 of 2009 in O.S. No.47 of 2009. Parties are referred to as petitioner and respondents as in W.P(C) No.27501 of 2009 for convenience. 2. Petitioner filed the suit for a decree for temporary injunction to restrain respondents from interfering with his use of the disputed way. Respondents resisted the suit on various grounds. Petitioner filed I.A. No.317 of 2009 for temporary injunction which trial court dismissed. Petitioner challenged that order in C.M.A.No.10 of 2001. In that appeal petitioner filed an application (I.A.No.518 of 2009) for temporary injunction. Learned District Judge ordered both sides to maintain status quo but directed petitioner not to use the disputed way for vehicular traffic. That order was challenged by the petitioner in W.P(C) W.(C) Nos.27501 & 30217 of 2009 -: 2 :- No.20735 of 2009. This Court directed learned District Judge to dispose of the appeal. On 26.08.2009 learned District Judge disposed of the appeal granting an interim order of injunction in favour of petitioner but with a rider that he shall not use the disputed way for vehicular traffic. Petitioner is aggrieved by that rider and preferred W.P(C) No.27501 of 2009 while the grant of injunction is challenged by respondents in W.P(C) No.30217 of 2009. Learned Senior Advocate appearing for petitioner would contend that facts of the case would show that even after institution of the suit respondents have caused obstruction to the pathway. Learned counsel for respondents contends that appellate court was not justified in granting order of injunction against them. 3. So far as challenge of the respondents to that part of the judgment granting temporary injunction in favour of petitioner is concerned it is seen from Ext.P7, judgment of learned District Judge that at the time of hearing both sides expressed opinion that order of the trial court (refusing to grant injunction) cannot be sustained. Learned Senior Advocate contends that refusal to grant injunction as prayed for and the direction that petitioner shall not use the disputed way for vehicular traffic cannot be sustained. W.(C) Nos.27501 & 30217 of 2009 -: 3 :- 4. What is contained in Ext.P7, judgment is a statement made by the parties through their counsel before the learned District Judge that order of the trial court cannot stand. That statement has to stand and cannot be challenged under Article 227 of the Constitution of India. Remedy was by way of review before learned District Judge. No such course of action has been taken. In the facts and circumstances of the case there is no reason to interfere with the order of injunction granted by the learned District Judge as per judgment under challenge. 5. Then the next question is whether learned District Judge is justified in directing petitioner not to use the disputed way for vehicular traffic. It is not as if learned District Judge has acted beyond his power while issuing that direction. While petitioner was permitted to use the pathway he was directed having regard to circumstances of the case not to use the said way for vehicular traffic. That is a direction issued by the learned District Judge in exercise of his discretionary jurisdiction. So far as it is not shown to be perverse or illegal I do not find reason to interfere with the same invoking power under Article 227 of the Constitution of India. I also find that learned District Judge has directed disposal of the suit within four months from the date of receipt of copy of that judgment. Judgment was pronounced on W.(C) Nos.27501 & 30217 of 2009 -: 4 :- 26.08.2009. Had the parties co-operated the suit itself could have been disposed of by now. That also persuades me not to interfere with the discretionary jurisdiction exercised by the learned District Judge. However I direct the trial court to dispose of the suit within four months from the date of receipt of a copy of this judgment. With the above direction these Writ Petitions are dismissed. THOMAS P. JOSEPH, JUDGE. vsv