IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 WP(C).No. 22452 of 2008(W) -------------------------- AGAINST THE ORDER IN CMA.6/2007 IN CMA.5/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.165/2006 of MUNSIFF COURT, RANNI (IA.1436/06,IA.1523/06) .................... PETITIONERS: ------------ 1. RAMAKRISHNAN E.G., OLICKAL HOUSE, KARIKULAM MURI, ATHIKAYAM VILLAGE, RANNY TALUK, PATHANAMTHITTA. 2. JAYAMOHAN K., OLICKAL HOUSE KARIKULAM MURI, ATHIKAYAM VILLAGE RANNY TALUK, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: ------------- 1. THANKAPPAN @ THANKAN, PARACKAL HOUSE, PANACHIPARA, KADUMEENCHIRA,KARIKULAM MURI, ATHIKAYAM VILLAGE, RANNY TALUK, PATHANAMTHITTA. 2. LINUMON, PARACKAL HOUSE, PANACHIPARA, KADUMEENCHIRA, KARIKULAM MURI, ATHIKAYAM VILLAGE, RANNY TALUK, PATHANAMTHITTA. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.22452 OF 2008 =========================== Dated this the 25th day of July, 2008 JUDGMENT Petitioners are the plaintiffs in O.S.165/2006 on the file of Munsiff Court, Ranny. Respondents are the defendants. Suit is for permanent prohibitory injunction to restrain respondents from trespassing into the plaint schedule property or constructing a way through the plaint schedule property. I.A.1436/2006 was filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure for an order of temporary injunction. Respondents contended that the way has been in existence and they have a right of way through plaint schedule property. A Commission was appointed and the Commissioner submitted a report disclosing existence of the way. Alleging that petitioners obliterated that way respondents filed an application for interim mandatory injunction. Under Ext.P10 order, learned Munsiff found that a W.P.(C)22452/2008 2 way was in existence when the suit was filed and subsequent to the order of injunction granted petitioners obliterated that way. Therefore I.A.1523/2006 filed by respondents for restoration of the way was allowed and I.A.1436/2006 application filed by petitioners was dismissed. Petitioners challenged the order before District Court, Pathanamthitta in CMA 5/2007 and 6/2007. Under Ext.P13 order, learned District Judge reappreciated the materials and confirmed Ext.P10 order and dismissed the appeals. It is challenged in this petition under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioners was heard. 3. The argument of the learned counsel is that courts below were not justified in granting an interim mandatory injunction, as respondents have no right of way through plaint schedule property and petitioners are in possession of the W.P.(C)22452/2008 3 entire plaint schedule property. Learned counsel argued that materials produced were not properly appreciated by courts below and Exts.P10 and P13 are to be quashed. 4. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference in Exts.P10 and P13 orders. Learned Munsiff considered the prima facie case balance of convenience and irreparable injury that may be caused. Based on the report submitted by the Commissioner immediately after filing the report and subsequently it was found that the way which was in existence even before filing of the suit was obliterated subsequent to the suit. It is on that basis an interim mandatory injunction was granted to restore the way to its original position. I do not find any reason to interfere with that order. Learned Munsiff is directed to dispose the suit untrammelled by any observations in Ext.P10 or P13 orders or this judgment as expeditiously as W.P.(C)22452/2008 4 possible. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006