Geervani vs A. Gangadharan Nair
2022 Latest Caselaw 1043 Ker

               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

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. 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

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

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.