IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 OP(C).No. 1322 of 2011(O) ------------------------- AGAINST THE ORDER IN IA 681/2011 AND IA.576/2011 of MUNSIFF COURT, CHITTUR .................... PETITIONER (S): -------------------- HANEEFA RAWTHER, S/O. ATHAR RAWTHER, AGED 73 YEARS, RESIDING AT KAMBRATH CHALLA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENT(S): --------------- 1. PERUMAL, S/O. GOVINDA THARAKAN, AGED 52 YEARS, RESIDING AT MURALI HOTEL, MUTHALAMADA NO.I VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 507. 2. UNNIKRISHNAN, S/O. GOVINDA THARAKAN, AGED 48 YEARS, RESIDING AT MURALI HOTEL, MUTHALAMADA NO.I VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 507. 3. MURALEEDHARAN, S/O. GOVINDA THARAKAN, AGED 45 YEARS, RESIDING AT MURALI HOTEL, MUTHALAMADA NO.I VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 507. 4. MURUGAN, S/O. GOVINDA THARAKAN, AGED 40 YEARS, RESIDING AT MURALI HOTEL, MUTHALAMADA NO.I VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 507. OPC 1322/2011 5. SHARFUDEEN, S/O. HANEEFA RAWTHER, AGED ABOUT 44 YEARS, RESIDING AT KAMBRATH CHALLA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT - 678 507. 6. NOORMUHAMMED, S/O. HANEEFA RAWTHER, AGED ABOUT 41YEARS, RESIDING AT KAMBRATH CHALLA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT - 678 507. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1322 of 2011 --------------------------------------- Dated this the 1st day of April, 2011 JUDGMENT Respondents 1 to 4 filed O.S.No.49 of 2011 on the file of the court of the Munsiff of Chittur against respondents 5 and 6 as well as the petitioner for mandatory injunction to restore the pipeline for supply of water from the well mentioned in document No.925 of 1974 executed by the first defendant in favour of the plaintiffs. The petitioner is the first defendant in the suit. 2. The allegation made by the plaintiffs was that the defendants disconnected the pipeline and therefore, water could not be drawn to the plaint schedule property. It was stated that in a building in the plaint schedule property, Federal Bank is functioning. Ten employees are working in the Federal Bank. It was contended that if the pipeline was not restored, the plaintiffs and the occupants of the building O.P.(C)No.1322/2011 2 would be put to irreparable injury and great hardship. The plaintiffs filed I.A.No.223 of 2011 for interim mandatory injunction. When that application came up for hearing, the first defendant contended that though the plaintiffs are entitled to draw water from the well through a pipeline, they could not do so without installing a motor of their own. Submissions made by the counsel on either side were taken note of by the court below while disposing of I.A.No.223 of 2011 as per Exhibit P5 order dated 4th February, 2011. It was held by the court below thus : “7. At the time of hearing the counsel for the 1st respondent submits that the petitioners have not acted as per the stipulations in the sale deed. A copy of the sale deed is seen produced regarding sale in favour of the petitioners. The 1st respondent has no dispute regarding the sale. As per the copy of the sale deed it is seen provided that the petitioners will have right to take water from the well through pipe line. On the basis of this it was contended from the side of the respondents that the petitioners cannot be supplied the water from the well by using motor installed by the 1st respondent. According to him the petitioners can install a separate motor in the well and take the water connection by O.P.(C)No.1322/2011 3 installing the pipe line to the plaint schedule property. But he submits that the permission of Hajira Umma will have to be obtained by the petitioners to take pipe line through her property. On the basis of this submission made by the counsel for the 1st respondent, the counsel for the petitioners submitted that the petitioners are ready to install the motor on the well in the property of the 1st respondent and are ready to take separate pipe line connection to the plaint schedule property and he also submitted that the pipe line can be taken to the plaint schedule property without touching the property of Hajira Umma and petitioners counsel prayed to permit the petitioners to install the motor as stated above and to take water connection by installing the pipe lines. So on the basis of the above submissions I find that an order on merit need not be passed at present. In view of the stand taken by the 1st respondent's counsel that the petitioners can install motor in the well and take separate water connection through the pipe line. In the result, petition is disposed of and the petitioners are permitted to take water connection to the plaint schedule property by installing separate motor to the well situated in the property of the 1st respondent and by taking necessary pipe line connections from there to the plaint schedule property for the purpose of getting water to the plaint schedule property. The petition is disposed of as above.” O.P.(C)No.1322/2011 4 4. The plaintiffs stated that they attempted to install the pipeline connection in terms with the order in I.A.No.223 of 2011. But there was obstruction from the side of the defendants. Therefore, the plaintiffs filed I.A.No.576 of 2011 to appoint a Commissioner and to permit the plaintiffs to carry out the work in implementation of the order in I.A.No.223 of 2011 under the supervision of the Advocate Commissioner. I.A.No.576 of 2011 was allowed by the court below as per Exhibit P6 order dated 9.3.2011. 5. The Commissioner visited the property on 19.3.2011 to supervise the execution of work. At that time, the plaintiffs and their counsel and defendants 1 to 3 were present. Hajira Umma, the wife of the first defendant and mother of defendants 2 and 3 stated to the Commissioner that she is not a party to the suit and therefore, she is not bound by the order. She also stated that she had filed another suit before the Sub Court, Palakkad and in that suit, an order of O.P.(C)No.1322/2011 5 status quo was passed. Taking note of the submissions made by Hajira Umma, the Commissioner made an attempt to lay the pipeline avoiding the property of Hajira Umma. At that time, the third defendant raised an objection that the property situated on the northern side of the well belongs to him and that the plaintiffs would not be allowed to lay the pipeline through his property. He obstructed the work. The Commissioner filed Exhibit P7 report dated 21.3.2011 stating all these facts. It is also stated in the report that the Commissioner explained all the matters to the third defendant, but the third defendant was adamant that he would not permit the plaintiffs to undertake the work in the presence of the Commissioner. The Commissioner prayed in Exhibit P7 report that necessary police aid may be ordered to execute the work. 6. Taking into account the report submitted by the Commissioner, the court below passed Exhibit P8 order dated O.P.(C)No.1322/2011 6 21.3.2011 directing necessary police aid to the Commissioner. 7. Exhibit P6 order dated 9.3.2011 and Exhibit P8 order dated 21.3.2011 are challenged in this Original Petition. 8. At the outset, it is to be stated that pursuant to Exhibit P6 order, the Commissioner visited the property and tried to implement the order passed by the court below in I.A.No.223 of 2011 dated 4th February, 2011. The Commissioner inspected the property on 19.3.2011. He was obstructed by the defendants. This Original Petition is filed on 31.3.2011 in which Exhibit P6 order dated 9.3.2011 is also challenged. There are no bonafides on the part of the petitioner to challenge Exhibit P6 order at this point of time. 9. Noorumuhammed, the third defendant, filed I.A.No.696 of 2011 before the court below for issuing a direction to the Advocate Commissioner to take the pipeline to O.P.(C)No.1322/2011 7 the property of the plaintiffs except through the property of the third defendant. The trial court dismissed I.A.No.696 of 2011 by a detailed order dated 24th March 2011. Noorumuhammed challenged the order dated 24th March, 2011 in I.A.No.696 of 2011 before this Court in O.P.(C) No.1288 of 2011 which was dismissed on 30.3.2011. On the next day, the first defendant filed this Original Petition. 10. There is no dispute that at the time when the plaint schedule property was assigned to the plaintiffs, they were given the right to draw water from the well situated in the property of the first defendant. Noorumuhammed claims under the first defendant. What is the right claimed by Hajira Umma is not known at present. She has filed a separate suit before the Sub Court, Palakkad and that suit is pending. From the narration of facts mentioned above and on a perusal of the various orders passed by the court below, it is abundantly clear that there was consistent attempt on the part of the defendants to defeat the orders passed by the court O.P.(C)No.1322/2011 8 below and to defeat the undertaking made by the first defendant as well as the offer made by the first defendant before the trial court. It is very clear that the defendants did not take the court into confidence and they did not allow the Commissioner appointed by the court to execute the work. 11. I do not think that there is any bonafides in the Writ Petition. Exhibit P6 order by which a Commissioner was appointed to supervise the work cannot be challenged on any ground by the first defendant. There is no point is saying that the work cannot be executed under the supervision of an Advocate Commissioner. There is no dispute that the Advocate Commissioner and the plaintiffs were obstructed in carrying out the work as per the order passed by the court below in I.A.No.223 of 2011. When the Commissioner is obstructed and the parties, in whose favour the order is passed, are also obstructed, the court has no other alternative, but to order police aid to implement the order O.P.(C)No.1322/2011 9 passed by the court. The party who is bound by the order has no right to say that the police personnel cannot be deputed to implement the order. Therefore, the challenge against Exhibit P8 order is also unsustainable. 12. Water connection is to be restored to a building. For several months, the defendants were successful in their attempt to deny the basic amenity to the plaintiffs and their tenants. The court cannot be a mute spectator to all these atrocities. The court below was right in passing Exhibits P6 and P8 orders. No interference is called for. The Original Petition is accordingly dismissed. K.T.SANKARAN JUDGE csl