IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 25982 of 2008(R) -------------------------- CMA.47/2008 of D.C. & SESSIONS COURT,KOLLAM OS.26/2006 of MUN-MAGI COURT, PARAVOOR (IA 140/2008) .................... PETITIONER: ------------ BUDHI SIKHAMANI, AGED 59 YEARS, VIDYADHARAN, AJITH BHAVAN, PARIPPALLY, KOLLAM DISTRICT. BY ADV. SRI.V.VENUGOPALAN NAIR RESPONDENTS: ------------- P.SHAJI, SUBHASH BHAVAN, KULATHUKONAM, CHIRAKKARA VILLAGE, KOLLAM DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.25982 of 2008 ------------------------------- Dated this the 28th August, 2008. J U D G M E N T Petitioner is the plaintiff and respondent the defendant in O.S.No.26 of 2006, on the file of Munsiff Court, Paravoor. I.A.No.140 of 2008 was filed before the trial court for an interim mandatory injunction, contending that petitioner has a right of way which was obstructed by the respondent by constructing a fence and it is to be removed. Under Ext.P1 order, learned Munsiff granted an order directing removal of the fencing erected on the southern boundary of plaint B schedule pathway. Respondent challenged that order before the District Court, Kollam, in C.M.A.No.47 of 2008. Under Ext.P2 order, learned District Judge set aside Ext.P1 order directing the trial court to decide the suit expeditiously. The order is challenged in this petition filed under Article 227 of the Constitution of India. 2. The argument of the learned counsel appearing for the petitioner is that learned Munsiff exercised the discretion W.P.(C) No.25982 of 2008 2 properly in the interest of justice and Appellate Court was not justified in reversing the same on technical grounds. It was argued that O.S.No.212 of 2007 was earlier filed by the respondent, and on the strength of an ex parte order of injunction obtained in that suit, the way available to the petitioner was obstructed by constructing a fence on the southern portion of the way and subsequently that suit was not pressed and petitioner was compelled to institute the suit, and in such circumstances, for the reason that a mandatory injunction was not sought for, learned District Judge was not justified in reversing the order. Learned counsel also argued that court is competent to grant an order, even to maintain status quo anti, as held by this Court, and in such circumstances, learned District Judge was not justified in reversing the order and Ext.P2 order is to be quashed. 3. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference in Ext.P2 order. As rightly found by learned District Judge, even according W.P.(C) No.25982 of 2008 3 to the petitioner, before institution of the suit, respondent has completed the fencing, which according to the petitioner was constructed by making use an order of ex parte injunction obtained in O.S.No.212 of 2007, and that suit was subsequently not pressed. In spite of that fact, petitioner did not seek a decree for mandatory injunction for removal of the fencing. It is in such circumstances, learned District Judge found that it was not proper for the trial court to grant a mandatory injunction for removal of the fencing, when such a prayer is not made in the petition. 4. I cannot agree with the argument of the learned counsel that the said finding of the learned District Judge is against the law laid down by this Court in James v. Jaimon James (1998 (1) KLT 233). The question whether petitioner has a right of way is ultimately to be decided in the suit. Even much before the institution of the suit, fencing was completed. In such circumstances, learned District Judge was justified in directing the trial court to record evidence and proceed with the trial. W.P.(C) No.25982 of 2008 4 Petition is dismissed. Learned Munsiff is directed to dispose the suit untrammelled by any observations in Ext.P2, as expeditiously as possible. M.SASIDHARAN NAMBIAR, JUDGE nj.