IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 OP(C).No. 3707 of 2011(O) ------------------------------------ OS.216/2011 of MUNSIFF COURT, PERUMBAVOOR ............................................ PETITIONER(S): ---------------------- M.V.ELIYAS, AGED 44 YEARS, S/O.VARGHESE, MEKKUNNATHU, KIZHAKKAMBALAM, PIN-683565. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): ------------------------- M.V.VARGHESE, AGED 76 YEARS, S/O.VARKEY, MUDAKKALAYIL HOUSE, KIZHAKKAMBALAM VILLAGE, KIZHAKKAMBALAM, PIN-683565, ERNAKULAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV OPC.NO.3707/2011 APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1 : COPY OF THE COUNTER AFFIDAVIT FILED IN IA NO.1749/2011 IN OS NO.214/2011 OF THE MUNSIFF'S COURT, PERUMBAVOOR DATED 24-9-2011. EXHIBIT P2 : COPY OF THE ORDER IN IA 1749/2011 IN OS NO. 216/2011 OF THE MUNSIFF'S COURT, PERUMBAVOOR DATED 24-10-2011. EXHIBIT P3 : COPY OF THE CMA 23/2011 OF THE SUB COURT, PERUMBAVOOR DATED 11-11-2011. EXHIBIT P4 : COPY OF THE IA 1487/2011 IN CMA 23/2011 OF THE SUB COURT, PERUMBAVOOR DATED 11-11-2011. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3707 of 2011 ==================================== Dated this the 15th day of November, 2011 J U D G M E N T Petitioner is the defendant in O.S. No.216 of 2011 of the court of learned Munsiff, Perumbavoor. That is a suit filed by the respondent against petitioner drawing rain and waste water from plaint B schedule to the plaint A schedule pathway through which respondent has access to his property. Respondent filed application for temporary injunction as I.A. No.1749 of 2011. To that application petitioner filed objection contending that plaint B schedule situates on a higher level, plaint A schedule is on its west and that the natural flow of rain water is towards west. Learned Munsiff as per Ext.P2, order granted interim injunction. In challenge of that order, petitioner has preferred C.M.A. No.23 of 2011 in the court of learned Sub Judge, Perumbavoor and sought stay of operation as per Ext.P4, application. On Ext.P4, application learned Sub Judge has ordered notice and posted the case on 13.12.2011. Petitioner has filed this Original Petition seeking a direction to the learned Sub Judge to dispose of Ext.P4, application in C.M.A. No.23 of 2011 within a timeframe to be fixed by this Court and in the meantime keep in abeyance Ext.P2, O.P(C) No.3707 of 2011 -: 2 :- order. 2. Learned counsel submitted that learned Munsiff has simply acted on the report submitted by the Commissioner without referring to the objection raised by petitioner to I.A. No.1749 of 2011 and the objection to the report of Advocate Commissioner. It is also submitted by the learned counsel that so far as rain water is concerned, its natural flow is towards west and it is not within the control of petitioner. 3. Having regard to the nature of the order passed, I am not inclined to think that this Court should interfere in the matter at this stage. Learned Sub Judge has to consider Ext.P4, application for stay (I.A. No.1487 of 2011 in C.M.A. No.23 of 2011) as circumstances warranted. If petitioner is aggrieved by the long posting of the said application, it is open to the petitioner to request learned Sub Judge to advance hearing of that application by moving appropriate application. Original Petition is disposed of with the above observation. THOMAS P. JOSEPH, JUDGE. vsv