Kerala High Court
Pushpavalli vs Keloth Thazhekuniyil Nishaj on 17 October, 2024
2024:KER:79222
OP(C) Nos.1139/2021, 2140/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
OP(C) NO. 1139 OF 2021
AGAINST THE ORDER DATED 24.06.2021 IN IA NO.11/2021 IN OS
NO.11 OF 2021 OF MUNSIFF COURT, NADAPURAM
PETITIONERSPETITIONERS/PLAINTIFFS:
1 PUSHPAVALLI,
AGED 65 YEARS
D/O. KUNHIMATHA, SREESANKARA BAHAVANAM, NEAR
SREEKRISHNA TEMPLE, KAKKAPPALLI, PURAMERI AMSOM AND
DESOM OF VATAKARA TALUK, KOZHIKODE DISTRICT 673 503.
2 INDIRA,
AGED 64 YEARS
D/O. KUNHIMATHA, V.B. ROYAL APARTMENT, EDAPALLY,
COCHIN EDAPALLY AMSOM AND DESOM OF ERNAKULAM
DISTRICT 682 024.
3 DEVADASAN,
AGED 62 YEARS
S/O. KUNHIMATHA, (KANAN PUTHIYOT), VELIYANDAVIDE
VEEDU PARAMBA, PURAMERI AMSOM, DESOM OF VATAKARA
TALUK, KOZHIKODE DISTRICT 673503.
4 MOHAN,
AGED 59 YEARS
S/O. KUNHIMATHA, (KANAN PUTHIYOT), VELIYANDAVIDE
VEEDU PARAMBA, PURAMERI AMSOM, DESOM OF VATAKARA
TALUK, KOZHIKODE DISTRICT 673 503.
2024:KER:79222
OP(C) Nos.1139/2021, 2140/2022
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BY ADVS.
K.M.SATHYANATHA MENON
KAVERY S THAMPI
RESPONDENT/RESPONDENT/DEFENDANT:
KELOTH THAZHEKUNIYIL NISHAJ
S/O. CHATHU KELOTH THAZHEKUNIYIL HOUSE P.O. PURAMERI,
PURAMERI AMSOM, DESOM OF VATAKARA TALUK, KOZHIKODE
DISTRICT 673 503.
BY ADVS.
B.KRISHNAN
R.PARTHASARATHY
THIS OP (CIVIL) HAVING FINALLY HEARD ON 17.10.2024, ALONG WITH
OP(C).2140/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:79222
OP(C) Nos.1139/2021, 2140/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
OP(C) NO. 2140 OF 2022
AGAINST THE ORDER DATED 02.07.2022 IN CMA NO.31/2021
ADDITIONAL DISTRICT AND SESSIONS JUDGE, VATAKARA AND ORDER
DATED 24.06.2021 IN IA NO.2/2021 IN OS NO.11/2021 OF MUNSIFF COURT,
NADAPURAM
PETITIONERS/APPELLANTS/PETITIONERS/PLAINTIFFS:
1 PUSHPAVALLI
AGED 66 YEARS
D/O KUNHIMATHA, SREE SANKARA BHAVANAM, NEAR SREE
KRISHNA TEMPLE, KAKKAMVELLI, PURAMERI P.O, VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673503
2 INDIRA
AGED 65 YEARS
D/O KUNHIMATHA, V.B.ROYAL APARTMENT, EDAPPALLY,
KOCHI, ERNAKULAM, PIN - 682024
3 DEVADASAN
AGED 63 YEARS
S/O KUNHIMATHA, KANGADAN PUTHIYOTTIL, [VELIYANUVIDA]
VEEDU PARAMBA, PURAMERI, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN - 673503
2024:KER:79222
OP(C) Nos.1139/2021, 2140/2022
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4 MOHAN
AGED 60 YEARS
S/O KUNHIMATHA, KANGADAN PUTHIYOTTIL, [VELIYANUVIDA]
VEEDU PARAMBA, PURAMERI PO, VATAKAARA TALUK,
KOZHIKODE DISTRICT, PIN - 673503
BY ADV K.M.SATHYANATHA MENON
RESPONDENT/RESPONDENT/RESPONDENT/DEFENDANT:
KELOTH THAZHAKUNIYIL NISHAJ
AGED 46 YEARS
S/O CHATHU, KELOTH THAZHAKUNIYIL HOUSE, P.O.
PURAMERI, VATAKAARA TALUK, KOZHIKODE, PIN - 673503
BY ADVS.
R.PARTHASARATHY
B.KRISHNAN(K/337/1975)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.10.2024, ALONG
WITH OP(C).1139/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:79222
OP(C) Nos.1139/2021, 2140/2022
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JUDGMENT
[OP(C) Nos.1139/2021, 2140/2022] Dated this the 17th day of October 2024) In both original petitions, the plaintiffs are the petitioners. In OP(C) No.1139/2021, the plaintiffs have come up challenging Ext.P5, whereby the application filed under Order 6 Rule 17 of CPC to amend the schedule in the injunction application was dismissed. O.P(C) No.2140/2022 has been filed challenging Exts.P4 and P5. Ext.P4 is an order passed in an application for temporary injunction under Order 39 Rule 1 of CPC, whereby it was dismissed and against which CMA No.31/2021 was filed. Ext.P5 is the judgment in CMA No.31/2021.
2. The Suit is for an injunction restraining the defendants and his men from trespassing into the plaint B schedule property and, filling the same with soil and converting the same into a road to his property by force. Ext.P3 in OP(C) 2024:KER:79222 OP(C) Nos.1139/2021, 2140/2022 -6- No.1139/2021 is the application filed to amend the schedule in the injunction application. Earlier, the petitioners filed I. A No.5/2021 to amend the injunction application, which was dismissed by the court, on the ground that the proposed amendments sought in the petition were incomplete. Now, this is the second application filed to amend the injunction application. The trial court held that if the amendment is allowed, there would be a substantial change in the schedule. Moreover, there is gross negligence on the part of the petitioners at the time of filing the plaint. The Commissioner filed Ext.P1 report, in which it was categorically found that the B schedule is a way used by the defendant. She also found that the mud had been dumped in the lane, and the way was more than 60 years old and it is the only way that can be used by the defendant to enter the property. The Commissioner noted that the width of the way is 3.1 meters, and on the eastern side 2024:KER:79222 OP(C) Nos.1139/2021, 2140/2022 -7- of the B schedule, through the boundary of one Aneesh, there is a small way, which cannot be used as a way.
Having considered the rival submissions made at the Bar, and also the applications filed for amending the plaint as well as the injunction application, I deem it appropriate to dispose of these original petitions as follows:
a) Since the Commissioner has specifically noted that the B schedule has been used as a way, status quo as on today shall be maintained.
b) It is submitted by the counsel for the petitioners that I.A No.10/2021 was filed to amend the plaint, which is pending consideration by the trial court. Since there is already a stay from this Court for all further proceedings, the trial court cannot pass orders on the said application. Therefore, there will be a direction to the learned Munsiff to proceed with the Suit and the 2024:KER:79222 OP(C) Nos.1139/2021, 2140/2022 -8- application for amendment. The suit shall be disposed of as expeditiously as possible. Till such time, status quo as on today, as found by the Commissioner shall be maintained till the disposal of the Suit.
c) The plaintiffs shall not obstruct the defendant from using the way till the disposal of the Suit. The Suit shall be disposed of untrammelled by any of the observations made by this Court.
The original petitions are disposed of as above.
Sd/-
BASANT BALAJI JUDGE JS 2024:KER:79222 OP(C) Nos.1139/2021, 2140/2022 -9- APPENDIX OF OP(C) 2140/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PETITION FILED AS I.A NO.3/2021 IN OS NO.11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM Exhibit P2 A TRUE COPY OF THE ADVOCATE COMMISSIONER REPORT DATED 17.02.2021 AND PLAN SUBMITTED IN I.A NO.3/2021 IN OS NO.11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM Exhibit P3 A TRUE COPY OF THE COUNTER STATEMENT FILED IN I.A NO.2/2021 IN OS NO.11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM Exhibit P4 A TRUE COPY OF THE ORDER DATED 24.06.2021 IN I.A NO.2/2021 IN OS NO.11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM Exhibit P5 A TRUE COPY OF THE ORDER DATED 2.07.2022 IN C.M.A NO.31/2021 ON THE FILES OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, VATAKARA 2024:KER:79222 OP(C) Nos.1139/2021, 2140/2022 -10- APPENDIX OF OP(C) 1139/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REPORT AND SKETCH DATED 17.2.2021 FILED BY THE ADVOCATE COMMISSIONER IN I.A. NO. 3/2021 IN O.S. NO. 11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM (KALLACHI).
Exhibit P2 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN I.A. NO. 2/2021 IN OS NO. 11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM (KALLACHI).
Exhibit P3 TRUE COPY OF THE APPLICATION FIELD BY THE PETITIONERS AS I.A. NO. 11/2021 IN O.S. NO. 11/2021 O THE FILES OF THE MUNSIFF COURT, NADAPURAM (KALLACHI).
Exhibit P4 TRUE COPY OF THE OBJECTION FIELD BY THE RESPONDENT TO I.A. NO. 11/2021 IN O.S. NO. 11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM (KALLACHI).
Exhibit P5 CERTIFIED COPY OF THE ORDER DATED 24.06.2021 IN I.A. NO. 11/2021 IN O.S. NO. 11/2201 ON THE FILES OF THE MUNSIFF COURT NADAPURAM (KALLACHI).
Exhibit P6 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONERS AS I.A. NO. 10/2021 IN O.. NO. 11/2021 ON THE FILES OF THE MUNSIFF COURT, NADAPURAM, (KALLACH)I.