Kerala High Court
Aboobacker vs Unknown on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
OP(C).No.342 OF 2021
AGAINST THE ORDER/JUDGMENT IN AS 105/2020 OF III ADDITIONAL
DISTRICT COURT, THRISSUR
AGAINST THE ORDER IN I.A.NO.3 OF 2020 IN A.S.NO.105 OF 2020 DATED
22.02.2020 ON THE FILE OF THE III ADDITIONAL DISTRICT COURT,
THRISSUR
PETITIONER/FIRST APPELLANT/ FIRST PLAINTIFF:
ABOOBACKER
AGED 82 YEARS
S/O.KUNJALU, EDAYADI HOUSE, THIRUTHEKAD DESOM,
KIZHPULLIKARA P.O., KIZHPULLIKARA VILLAGE, THRISSUR
DISTRICT 680 702
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/SOLE RESPONDENT AND THE APPELLANTS 2 AND 3/FIRST
DEFENDANT AND THE PLAINTIFFS 2 AND 3:
1 JANU
AGED 65, W/O.LATE KUNJIKANDAN, CHENATH HOUSE,
KIZHPULLIKARA P.O., KIZHPULLIKARA VILLAGE, THRISSUR
DISTRICT 680 702
2 AYSHABI
AGED 75, W/O.ABOOBACKER, EDAYADI HOUSE, THIRUTHEKAD
DESOM, KIZHPULLIKARA P.O., KIZHPULLIKARA VILLAGE,
THRISSUR DISTRICT 680 702
3 NAZAR
AGED 47, S/O.KUNJUMON, ARAKKAVEETIL HOUSE,
THIRUTHEKAD DESOM, KIZHPULLIKARA P.O., KIZHPULLIKARA
VILLAGE, THRISSUR DISTRICT 680 702
R1 BY ADV. SRI.TERRY V.JAMES
R1 BY ADV. SRI.MATHEWS K.UTHUPPACHAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No.342 OF 2021
2
JUDGMENT
Dated this the 24th day of March 2021
The issue relates to plaint 'C' schedule pathway which was
closed. The plaintiffs in O.S.No.4616/2015 on the files of the II
Additional Munsiff Court, Thrissur, filed the suit which was dismissed.
2. The challenge of the judgment and decree in
A.S.No.105/2020 resulted in remand of the whole matter to the court
below. In the course of A.S.No.105/2020, plaintiffs filed
I.A.No.3/2020 for an order of temporary mandatory injunction.
3. The appellate court while disposing of the appeal and
passing an order of remand dated 22.12.2020 did not consider the
said application on merits. It was closed without application mind.
Being aggrieved by the order dated 22.12.2020 passed in I.A.3/2020,
the first plaintiff in the suit came up with this original petition under
Article 227 of the Constitution of India.
4. I heard the learned counsel appearing on either side.
5. In my view, the appellate court should have taken up
I.A.No.3/2020 and passed orders on merit. The impugned order
passed cannot be said to be sound in law. Nevertheless, paragraph
No. 42 of the appellate judgment dated 22.12.2020 indicates that the
OP(C).No.342 OF 2021
grievance of the plaintiffs in the suit was taken care of. The appellate
court directed the trial court to take care of the grievance of the
plaintiffs and dispose of the suit itself in the light of the observations
contained in the judgment in A.S.No.105/2020.
6. The learned counsel for the petitioner submits that
despite an order of remand in appeal, the plaintiffs in the suits are not
in a position to make use of the disputed way since it stands blocked.
7. According to him, orders are to be passed at an early
date in accordance with law and the rights of the plaintiffs protected.
The learned counsel for the respondents point out that the trial court
had on former occasion heard parties as to the need for preserving
subject matter of the suit and interlocutory orders were passed which
were challenged in appeal and none of the courts chose to remove the
alleged obstruction caused to the disputed way.
8. After hearing submissions made on behalf of either
parties, I am of the opinion that, in view of the order of remand
passed in A.S.No.105/2020, of the trial court has to decide the issue
over again. While complying the directions given in the remand order
passed in A.S.No.105/2020, the trial court will be at liberty to pass
necessary orders, if the plaintiffs in the suit make a request for issue
of mandatory injunction,in accordance with law.
OP(C).No.342 OF 2021
In the result, this O.P. is disposed of permitting the
petitioner to submit before the trial court an application for issue of
temporary injunction in same terms of I.A.No.3/2020 filed in
A.S.No.105/2020 and if such an application is filed, the court below
shall pass appropriate orders in accordance with law after hearing
parties. It is made clear that this Court has not expressed any view
on merits of the respective cases put forth by the parties. It is
directed that the trial court may not delay decision on the application,
if any, filed before it.
Sd/-
T.V.ANILKUMAR
JUDGE
SMF
OP(C).No.342 OF 2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O S NO 4616
OF 2015 ON THE FILE OF THE 2ND ADDITIONAL
MUNSIFF COURT, THRISSUR DATED 26.6.2015
EXHIBIT P2 A TRUE COPY OF THE COMMISSIONER'S REPORT
AND PLAN IN I.A.NO.13193 OF 2015 IN
EXT. P1 SUIT DATED 1.7.2015
EXHIBIT P3 A TRUE COPY OF THE COMMON ORDER PASSED IN
I.A.NOS.13195 AND 13196 OF 2015 IN EXT. P1
SUIT DATED 21.8.2015
EXHIBIT P4 A TRUE COPY OF THE COMMON JUDGMENT IN C M
A NO'S 113 AND 114 OF 2015 ON THE FILE OF
THE DISTRICT COURT, THRISSUR DATED
21.3.2016
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DELIVERED IN
A S NO.105 OF 2020 DATED 22.12.2020 ON THE
FILE OF THE 3RD ADDITIONAL DISTRICT COURT,
THRISSUR
EXHIBIT P6 A TRUE COPY OF THE PHOTOGRAPHS DATED NIL
TAKEN BY THE PETITIONER.
EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE LOWER
APPELLATE COURT, 3RD ADDITIONAL DISTRICT
COURT, THRISSUR IN I.A.NO.3 OF 2020 IN
A.S.NO.105 OF 2020 DATED 22.12.2020
//TRUE COPY//
PA TO JUDGE
