IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 OP(C).No. 1916 of 2011 AGAINST THE ORDER DATED 30/05/2011 IN IA.5050/2011 IN OS.2590/2008 OF II ADDL.MUNSIFF'S COURT, THRISSUR PETITIONER/PETITIONER ----------------------------------------- BABURAJ, AGED 66 YEARS, S/O.PANDIRIKKAL KUTTAPPU, PUZHAKKAL VILLAGE,DESOM, THRISSUR TALUK. BY SENIOR ADV. SMT.SUMATHI DANDAPANI SRI.MILLU DANDAPANI RESPONDENTS: RESPONDENTS 1,2 & 6 ---------------------------------- 1. PUZHAKKAL SREE DHARMA SASTHA KSHETHRA SAMITHY, PUZHAKKAL VILLAGE, THRISSUR TALUK, REP.BY ITS PRESIDENT, RAJENDRAN, AGED 35 YEARS, S/O.MANAKULAM PARAMBIL VELAYUDHAN. 2. SECRETARY, APPU, AGED 63 YEARS, S/O.PONNEMBARA ITTAMAN, PUZHAKKAL, THRISSUR. 3. ADATTU GRAMA PANCHAYAT, REP.BY SECRETARY, ADATTU GRAMA PANCHAYAT, PURANATTUKARA, THRISSUR. R3 BY ADV. SRI.JIJO PAUL R1 AND R2 BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF O.S.NO.2590/2008 ON THE FILE OF MUNSIFF'S COURT, THRISSUR. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.2590 OF 2008 DATED 19.2.2009. EXT.P3 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER. EXT.P3(a) TRUE COPY OF THE SKETCH PRODUCED ALONG WITH THE REPORT OF THE ADVOCATE COMMISSIONER. EXT.P4 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.25530 OF 2010, DATED 19.10.2010. EXT.P5 TRUE COPY OF THE PHOTOGRAPHS. EXT.P6 TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER IN O.S.NO.2590 OF 2008. EXT.P7 TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 IN O.S.NO.2590 OF 2008. EXT.P8 TRUE COPY OF I.A.NO.5051 OF 2009 FILED BY THE PETITIONER IN O.S.NO.2590 OF 2008. EXT.P9 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER. EXT.P10 TRUE COPY OF THE ORDER IN I.A.NO.5050 OF 2011 IN O.S.NO.2590 OF 2008 DATED 25.5.2011. EXT.P10(a) TRUE COPY OF THE ORDER IN I.A.NO.5050 OF 2011 IN O.S.NO.2590 OF 2008 DATED 30.5.2011. EXT.P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE SECRETARY OF THE THIRD RESPONDENT DATED 17.5.2011. EXT.P11(a) TRUE COPY OF THE ACKNOWLEDGTEMENT OF EXT.P11. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1916 OF 2011 O ------------------------------------------------------ Dated this the 23rd day of June, 2011 JUDGMENT The petitioner filed O.S.No.2590 of 2008 on the file of the Munsiff's Court, Thrissur against the respondents and others for a declaration that the plaint 'B' schedule pathway is the only way to the plaint 'A' schedule property belonging to the petitioner and for a mandatory injunction directing defendants 1 and 2 to remove the fence and chal constructed by them in the plaint 'B' schedule. There is also a prayer for permanent prohibitory injunction restraining the defendants from obstructing the user of the pathway. 2. Learned counsel for the petitioner stated that no temporary injunction was granted by the trial court and that the application for temporary injunction is pending disposal. A Commissioner was appointed to inspect the property. Defendants 1 and 2 filed an application to set aside the Commissioner's report. The learned Munsiff dismissed the application. The O.P.(C) NO.1916 OF 2011 O :: 2 :: second defendant challenged that order in W.P.(C) No.25530 of 2010, which was disposed of as per Ext.P4 judgment dated 19.10.2010. This Court directed the learned Munsiff to remit the Commissioner's report and sketch with a direction to the Advocate Commissioner to ascertain the matters mentioned in Ext.P4 judgment. During the course of hearing in W.P.(C) No.25530 of 2010, the petitioner herein (respondent in W.P.(C) No.25530 of 2010) voiced a grievance that the application for temporary injunction was not being taken up for hearing and that the 'B' schedule pathway was blocked. This submission was dealt with by the learned single Judge as follows: “Learned Senior Advocate appearing for respondent has stated that even plaint B schedule as reported by the Advocate Commissioner has been blocked by the petitioner and respondent is left with no access to the plaint A schedule. It is submitted that an application for temporary/mandatory injunction filed by the respondent is pending in the trial court and coming up for hearing on 30.10.2010. That application was not taken up so far on account of pendency of this petition in this court. I make it clear that it is open to the respondent to request learned Munsiff to take up O.P.(C) NO.1916 OF 2011 O :: 3 :: that application for temporary/mandatory injunction for consideration without waiting for the additional report and plan if such a course is possible.” 3. Thereafter, the petitioner filed I.A.No.5050 of 2011 for an injunction restraining the respondents from making constructions in the 'B' schedule property. It was alleged in the affidavit accompanying that application that defendants 1 and 2 were making attempts to alter the nature of the property by constructing septic tanks. The learned I Additional Munsiff in charge of the II Additional Munsiff passed an order dated 30.5.2011 in I.A.No.5050 of 2011, the operative portion of which reads as follows: “The petition is disposed of as follows:- The respondents are permitted to put up septic tanks in B schedule as proposed on condition that they remove the obstruction to B schedule from road as reported by commissioner. The respondents shall remove that obstruction. The right of respondents to permanently maintain the septic tanks will be subject to the final result of the suit.” 4. The grievance of the petitioner is that the respondents O.P.(C) NO.1916 OF 2011 O :: 4 :: have not removed the obstruction in the 'B' schedule property in spite of the order dated 30.5.2011 in I.A.No.5050 of 2011 (Ext.P10 (a)). In these circumstances, the petitioner filed the Original Petition for the following reliefs: “(i) call for the records leading to Ext.P10(a) and peruse the same, (ii) quash that part of the order giving permission to respondents 1 and 2 to put up the septic tank in plaint “B” schedule, (iii) issue any other appropriate order or direction, directing respondents 1 and 2 to remove the obstruction in the “B” schedule forthwith and report the same to the Hon'ble Court, (iv) direct the 3rd respondent to consider Ext.P11 filed on 18.5.2011 and take appropriate action on the same forthwith, (v) issue such other appropriate order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, and (vi) award costs.” O.P.(C) NO.1916 OF 2011 O :: 5 :: 5. The Registry raised an objection that the order in I.A.No.5050 of 2011 is appealable and that the Original Petition is not maintainable. The learned counsel for the petitioner submitted that only relief (iii) is pressed. Accordingly, the Original Petition was directed to be numbered. Notice was issued by special messenger to the respondents. Only the third respondent appeared. There is no appearance for respondents 1 and 2. 6. As stated earlier, the grievance of the petitioner is that the obstruction caused by respondents 1 and 2 in the plaint 'B' schedule pathway was not removed in spite of Ext.P10(a) order dated 30.5.2011. It is also stated that the learned Munsiff, before whom the case is pending, is on leave and the case is now posted to 28.7.2011. If the order passed by the learned Munsiff is not complied with, the petitioner has effective remedies. The order can be implemented, if necessary, with the assistance of Police and necessary application can be filed by the petitioner for that relief in the court below itself. An order passed by the learned Munsiff, normally, cannot be straight away sought to be implemented by invoking Article 227 of the Constitution of India. O.P.(C) NO.1916 OF 2011 O :: 6 :: That the learned Munsiff is on leave would not stand in the way of the petitioner to move necessary applications in that behalf. If an application is filed for that purpose, the learned Munsiff in charge, will deal with the application as expeditiously as possible to ensure that the order dated 30.5.2011 in I.A.No.5050 of 2011 is properly implemented. Relief (iii) in the Original Petition is accordingly disposed of. 7. As regards the other reliefs which are not pressed by the petitioner, it is made clear that the right of the petitioner to move the appropriate forum would not be taken away by this judgment. The Original Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/