IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 13889 of 2008(C) -------------------------- AGAINST THE ORDER IN IA 172/2008,475/2006 IN OS.131/2006 of MUNSIFF'S COURT,PARAPPANANGADI .................... PETITIONER: -------------------- ACHUTHAN, S/O.VELU, KOTTAYIL NAKKUNNATH, MANNA NIVAS, P.O.MANKAVU, KOZHIKODE-2. BY ADV. SRI.K.P.SUDHEER RESPONDENTS: -------------------------- 1. VASU, S/O.VELU, KOTTAYIL NAKKUNNATH, CHETTIPPADI POST, PARAPPANANGADI, MALAPPURAM DISTRICT. 2. THE SUB INSPECTOR OF POLICE, PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.SAJU J.VALLYARA - R1 SRI.K.N.VINODKUMAR - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13889/2008 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER DTD. 31/03/2006 IN I.A.NO.475 OF 2006 IN O.S.NO.131 OF 2006 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI. EXT.P2: COPY OF APPLICATION (I.A.NO.172 OF 2008) IN I.A.NO. 475 OF 2006 IN O.S.NO.131 OF 2006 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P3: COPY OF ORDER DTD. 31/3/2008 IN I.A.NO.172 OF 2008 IN I.A.NO.475 OF 2006 IN O.S.NO.131 OF 2006 PASSED BY THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P4: COPY OF PETITION DTD. 17/12/2007 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.13889 OF 2008 =========================== Dated this the 5th day of June, 2008 JUDGMENT Petitioner is the plaintiff and first respondent the defendant in O.S.131/2006 on the file of Munsiff Court, Parappanangadi. Suit is one for declaration and also for injunction. Along with the suit, petitioner filed Ext.P1 petition (I.A.475/2006) for an order of temporary injunction. An ex parte order of injunction was passed on 31.3.2006 finding a prima facie case in favour of the petitioner restraining first respondent from altering the nature of the plaint B schedule property or obstructing the way through plaint B schedule property. That order was not varied, modified or set aside and is subsisting. I.A.172/2008 was subsequently filed by petitioner contending that inspite of the order of injunction granted, first respondent is obstructing petitioner from taking vehicles through plaint B W.P.(C)13889/2008 2 schedule property. Under Ext.P3 order, petition was dismissed as in the opinion of the trial court remedy is to invoke Rule 2-A of Order XXXIX of Code of Civil Procedure. Ext.P3 is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Ext.P1 order shows that an order of temporary injunction was passed restraining first respondent from causing obstruction to the way including vehicles being taken through plaint B schedule property. If the case of the first respondent is that there is no such way or petitioner is not entitled to use the way for taking vehicles, remedy of the respondent is either to challenge that order or to get the order vacated, set aside or modified and he is not entitled to violate the order. The prayer in the petition is not to take action against the first respondent for violation of the order of injunction W.P.(C)13889/2008 3 as provided under Rule 2-A of Order XXXIX of Code of Civil Procedure. Therefore this is not an order passed in an application under Rule 2-A of Order XXXIX. So remedy of appeal is not available to the petitioner. 4. It is seen from Ext.P3 order that under the misconception that remedy of the petitioner is to take action as provided under Rule 2-A, the petition was dismissed. Ext.P3 order is therefore quashed. Learned Munsiff is directed to pass appropriate order in I.A.172/2008 after hearing the parties, considering the fact that so long as an order of temporary injunction is subsisting as against first respondent, he is not entitled to violate the same or to cause any hindrance or obstruction to the way. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006