IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 24445 of 2009(O) -------------------------- AGAINST THE ORDER DATED / / IN EP 467/2008 IN OS.399/2008 of PRL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- 1. C.D.VINCENT, S/O. CHEMMANNUR DEVASSY, RESIDING AT T.C.11/1549, CLIFF HOUSE ROAD, NANDANCODE, THIRUVANANTHAPURAM. 2. BINDU JOSEPH, W/O. JOSEPH, RESIDING AT CHETTUPUZHA VEEDU, IYYATTIL HOSPITAL JUNCTION, KOCHI. 3. BEENA THOMAS, W/O. THOMAS, RESIDING AT PATTARA PUTHEN VEEDU, MUHAMMA, ALAPPUZHA. (PETITIONER 2 AND 3 ARE REP. HEREIN BY THEIRPOWER OF ATTORNEY HOLDER JOSE S/O. PUDUSSERU ALUKKA VARGHESE, RESIDING AT ALUKKA HOUSE, ARISTO ROAD, THRISSUR.) BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP 2 RESPONDENT(S): --------------------------- 1. S.M.KHAN, S/O. SYED MUHAMMED, MANAGING PARTNER, M/S. NANA AUTO FUELS, ATTAKULANGARA, THIRUVANATHAPURAM. 2. M/S. BHARATH PETROLEUM CORPORATION LTD., REP. BY ITS MANAGING DIRECTOR, KOCHI. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R2 SRI.S.SUJIN FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH F.A.O.NO.206 OF 2009 ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24445 of 2009(O) APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE COMMON JUDGMENT IN O.S.NOS.291/98 AND 399/98 ON THE FILE OF THE COURT OF THE RENT. EXT.P2: TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.19138/2009 ON THE FILE OF THIS HONOURABLE COURT DATED 13.7.2009. EXT.P3: TRUE COPY OF E.P.NO.467/2008 ON THE FILE OF THE COURT OF THE MUNSIFF OF THIRUVANANTHAPURAM DATED 29.10.2009. EXT.P4: TRUE COPY OF THE APPLICATION AS E.A.NO.512/2009 ON THE FILE OF THE COURT OF THE MUNSIFF OF THIRUVANANTHAPURAM DATED 10.8.2009. .................................. V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.24445 of 2009 & F.A.O.No.206 of 2009 = = = = = = = = = = = = = = Dated this the 28 th day of August, 2009 JUDGMENT The writ petition is filed by two of the plaintiffs in O.S.No.399 of 1998 on the file of the Munsiff's Court, Thiruvananthapuram seeking a direction to the Executing Court to dispose of E.P.No.467 of 2008 expeditiously and also for a direction to the Sub Court, Thiruvananthapuram to dispose of three appeals pending before that Court as A.S.Nos.117/2008, 127/2008 and 98/2009 expeditiously. 2. F.A.O.No.206/2009 is filed by M/s.Bharat Petroleum Corporation Ltd. which is the 2nd defendant in the aforementioned suit. The 1st defendant in the said suit is one S.M.Khan who runs a petrol pump of M/s.Bharat Petroleum Corporation under the name and style of Nana Auto Fuels at Attakulangara, Thiruvananthapuram. The said W.P.(c).No.24445/2009 & F.A.O.No.206/2009 2 Khan is the plaintiff in a cross-suit filed as O.S.No.291/1998 before the very same court. For the sake of convenience, the parties shall hereafter be referred to as per their rank in O.S.No.399 of 1998. In the F.A.O the appellant Corporation is challenging the interim order dated 4.08.2009 passed by the Sub Court, Thiruvananthapuram rejecting an application for injunction passed in A.S.No.127 of 2008. 3. The controversy between the parties is regarding the right in respect of a strip of land abutting the main road which passes along the western boundary of the strip of land which is described as the plaint B Schedule property in O.S.No.399/1998. There is no dispute that the plaintiffs in O.S.No.399/1998 referred to above are the owners in respect of the disputed strip of land as well as a larger extent of property lying to the east of the said strip of land. The larger extent has been described as Plaint A Schedule Property in O.S.No.399/1998. The Bharat Petroleum W.P.(c).No.24445/2009 & F.A.O.No.206/2009 3 Corporation has got a property adjoining the plaint B Schedule disputed strip of land and Khan referred to above is the petroleum dealers who runs Nana Auto Fuels. According to the plaintiffs, the plaint B Schedule strip of land was given on licence to Bharat Petroleum Corporation in the year 1963 for user as a drive way into the adjacent petrol pump and the plaintiffs had also reserved their right to use the strip of land for access from the main road into the larger extent described as the plaint A Schedule Property. Eventhough I am referring to the transaction as a licence, there is a dispute between the parties as to whether it is a lease or licence and I am not going into that controversy for the present. Suffice it to say that as per a document of the year 1963, the Bharat Petroleum Corporation was granted a right to use the plaint B Schedule Property as a drive way for having access to the adjoining petrol pump. Dispute arose between the owners W.P.(c).No.24445/2009 & F.A.O.No.206/2009 4 namely the plaintiffs and the Bharath Petroleum Corporation as well as the dealer when a gate was attempted to be installed by the plaintiffs towards the eastern end of the plaint B Schedule strip of land. This was objected to by the defendants resulting in the 1st defendant/dealer filing a suit as O.S.No.291/1998 and the owners filing the counter suit as O.S.No.399 of 1998. Both suits were jointly tried by the learned Munsiff who as per Ext.P1( in W.P.(c).No.24445/2009) common judgment and decree dated 16.8.2008 dismissed O.S.No.291 of 1998 but decreed O.S.No.399/1998 granting prohibitory injunction restraining the defendants in O.S.No.399/1998 and their men from obstructing the plaintiffs/owners from using the plaint B Schedule strip of land for access to the plaint A Schedule larger extent and from obstructing the plaintiffs from putting up a gate on the north-western wall of the plaint A schedule property. Aggrieved by the dismissal of W.P.(c).No.24445/2009 & F.A.O.No.206/2009 5 O.S.No.291/1998 the dealer filed A.S.No.127 of 2008. In that appeal an application for temporary injunction was filed as I.A.No.676/2009 which was dismissed as per order dated 4.8.2009. It is the said order which is assailed in the FAO. Pursuant to the dismissal of I.A.No.676/2009, the plaintiffs wanted to expeditiously pursue the execution petition namely E.P.No.467/2008. Hence the writ petition for the aforementioned directions. 4. The controversy between the parties can be finally resolved only if the three appeals pending before the Sub Court, Thiruvananthapuram are finally disposed of. Until then, in order to avoid a stalemate regarding access to the plaint A Schedule in O.S.No.399 of 1998, the learned counsel appearing on either side have come to a reasonable understanding that the appeals pending before the Sub Court can be directed to be disposed of expeditiously and until then the plaint B Schedule will be used by the W.P.(c).No.24445/2009 & F.A.O.No.206/2009 6 plaintiffs/lessors and their workers for access to the plaint A Schedule property including carriage of materials etc. using vehicles to the plaint A Schedule property where a multi- storeyed building is nearing completion. Until the appeals are disposed of it is agreed that no gate will be put up by the plaintiffs on the north-western boundary of the plaint A Schedule property as was initially attempted. This arrangement is only till the disposal of the appeals and no party can claim any special rights or equities from this arrangement which is only provisional. FAO No.206/2009 and W.P.C No.24445 of 2009 are accordingly disposed of directing the the Sub Court, Thiruvananthapuram to dispose of A.S.Nos.117 of 2008, 127 of 2008 and 98 of 2009 expeditiously, and at any rate on or before 30.09.2009. Until the disposal of those appeals the defendants shall not be entitled to object to the plaintiffs using the plaint B Schedule strip of land for access W.P.(c).No.24445/2009 & F.A.O.No.206/2009 7 to the plaint A Schedule property from the main road including the carriage of materials through vehicles and the plaintiffs also shall not put up any gate towards the eastern boundary of the plaint B Schedule strip of land. If that court is not able to adhere to the time limit fixed as above it shall send a report through proper channel to the Registry of this Court explaining the reasons as to why the above time limit could not be adhere to. Dated this the 28 th day of August, 2009. V. RAMKUMAR, JUDGE sj