Kerala High Court
Geervani vs A. Gangadharan Nair on 27 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943
OP(C) NO. 38 OF 2021
AGAINST THE ORDER/JUDGMENT IN OS 448/2019 OF ADDITIONAL MUNSIFF
COURT, KOZHIKODE-II
CMA 73/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV,
KOZHIKODE / III ADDITIONAL MACT, KOZHIKODE
PETITIONERS:
1 GEERVANI
AGED 72 YEARS
W/O. LATE KRISHNANKUTTY NAIR,
ADUKKATH HOUSE, KUNNAMANGALAM AMSOM DESOM,
P.O. KUNNAMANGALAM,
KOZHIKODE TALUK AND DISTRICT 673 571.
2 RAJESH,
AGED 46 YEARS
S/O. LATE KRISHNANKUTTY NAIR,
ADUKKATH HOUSE,
KUNNAMANGALAM AMSOM DESOM,
P.O. KUNNAMANGALAM,
KOZHIKODE TALUK AND DISTRICT 673 571.
3 RAJEESH,
AGED 44 YEARS
S/O. LATE KRISHNANKUTTY NAIR,
ADUKKATH HOUSE, KUNNAMANGALAM AMSOM DESOM,
P.O. KUNNAMANGALAM,
KOZHIKODE TALUK AND DISTRICT 673 571.
BY ADVS.
E.G.GORDEN
SRI.S.K.KRISHNAKUMAR
SMT.V.M.MARY HARSHA
RESPONDENTS:
A. GANGADHARAN NAIR
AGED 71 YEARS
S/O. LATE GOPALAN NAIR,
THEKKEVAYYAPPURATH HOUSE,
MADAVOOR AMSOM DESOM,
P.O MADAVOOR,
KOZHIKODE TALUK AND DISTRICT 673 581.
OP(C) NO. 38 OF 2021
2
BY ADVS.
SRI.ENOCH DAVID SIMON JOEL
SRI.S.SREEDEV
SRI.RONY JOSE
SHRI.CIMIL CHERIAN KOTTALIL
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 38 OF 2021
3
JUDGMENT
Dated this the 27th day of January, 2022 The petitioners, who are the plaintiffs in O.S.No.448/2019 on the file of the Additional Munsiff's Court-II, Kozhikode, have filed this Original Petition under Article 227 of the Constitution of India, challenging order in CMA 73/2019 dated 24.08.2019 on the file of the Additional District Judge-IV, Kozhikode. As per the said CMA, the learned District Judge set aside the interim injunction granted by the learned Munsiff as per order in I.A.2206/2019 dated 24.08.2019.
2. Heard both sides.
3. When the matter is taken up for hearing, it is submitted by the learned counsel for the petitioners that the petitioners are satisfied, if status quo in relation to two feet width pathway described as B schedule in the plaint is ordered till the disposal of the suit.
4. It is submitted by the learned counsel for the respondent that the said two feet pathway is far away from the property of the defendant. In fact, this is a matter to be decided during the trial and I am not inclined to entertain the same. OP(C) NO. 38 OF 2021 4 Though the learned counsel for the respondent pointed out insufficient pleadings and also vital mistake in the commission report regarding non-mentioning of the width of the pathway as reasons for the judgment in CMA 73/2019, here, the plaint B schedule way is described as one having two feet and that too on the basis of the title deed relied on by the plaintiffs. However, the learned District Judge dismissed the interim application, without applying his mind as per paragraph 13 of the judgment. Paragraph 13 is extracted hereunder.
"13. As I have already stated, there is nothing to show that the appellant/defendant attempted to trespass into the petition schedule properties and to reduce the width of the pathway. There is nothing to show the actual width of the pathway. The Advocate commissioner has not noted the width of the pathway. The lie of the petition schedule properties and the property of the appellant/defendant shown in the rough plan prepared by the advocate commissioner does not tally with the averments in the affidavit filed by the petitioner in support of the application for temporary injunction. Since there is nothing to show that the appellant/defendant attempted to trespass into the petition schedule properties and to reduce the width of the pathway, it cannot be said that the respondents/appellants have any cause of action against the appellant/defendant. As there is no cause of action against the appellant/defendant, it cannot be said that the respondents/plaintiffs have got a prima facie case. Without establishing a prima facie case, balance of convenience and irreparable injury does not arise for consideration. Therefore, I find that the learned Munsiff exercised the discretion of granting temporary injunction arbitrarily and improperly. Hence the order passed by the learned Munsiff is unsustainable in law. Therefore, the said order is set aside and I.A.No.2206/19 in O.S.No.448/19 is dismissed. The parties shall suffer their respective cost. The points are found accordingly."
OP(C) NO. 38 OF 2021 5
5. Going by the order, I cannot justify the learned District Judge since in this case, the plaintiff specifically pleaded right over B schedule pathway, having two feet width with apprehension of trespass by pleading the same repeatedly in the plaint. It is true that after claiming absolute right over the plaint B schedule way, right of easement by necessity also pleaded. Similarly, though the Commissioner identified B schedule, its width not specifically stated in the report. However, the subject matter in dispute required to be protected till the disposal of the suit. Therefore, I find merit in the contention raised by the learned counsel for the petitioners in canvassing order of status quo.Therefore, I am inclined to set aside the order in CMA 73/2019 impugned herein and also to modify the order in I.A.2206/2019 passed by the learned Munsiff.
In the result, this Original Petition is allowed in part. Accordingly, it is ordered that parties shall maintain status quo in respect of two feet pathway scheduled as plaint B item till the disposal of the suit. Considering the nature of the contentions raised in the suit, there shall be a direction to the learned Munsiff to expedite the trial and disposal of O.S.No.4044/2019, at the OP(C) NO. 38 OF 2021 6 earliest, at any rate, within six months from the date of receipt or production of a copy of this judgment.
Registry is directed to forward a copy of this judgment to the court below concerned, within seven days, for information and compliance.
Sd/-
A. BADHARUDEEN JUDGE nkr OP(C) NO. 38 OF 2021 7 APPENDIX OF OP(C) 38/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 6.6.2019 IN O.S. NO. 448 OF 2019 ON THE FILES OF THE ADDITIONAL MUNSIFFS COURT II, KOZHIKKODE. EXHIBIT P2 TRUE COPY OF THE REGISTERED GIFT DEED NO.
597 OF 1981 DATED 14.3.1981 OF SRO, CHATHAMANGALAM.
EXHIBIT P3 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED NO. 164 OF 1983 DATED 20.1.1983 OF SRO, CHATHAMANGALAM.
EXHIBIT P4 TRUE COPY OF I.A. NO. 2206 OF 2019 DATED 6.6.2019.
EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT DATED 22.7.2019 FILED BY THE DEFENDANT IN I.A. NO. 2206 OF 2019.
EXHIBIT P6 TRUE COPY OF THE REPORT AND SKETCH DATED 16.7.2019 SUBMITTED BY THE ADVOCATE COMMISSIONER.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 24.08.2019 PASSED BY THE ADDITIONAL MUNSIFFS COURT II, KOZHIKKODE IN I.A. NO. 2206 OF 2019.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 27.10.2020 OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE IV, KOZHIKKODE IN C.M.A. NO. 73 OF 2019.