Kerala High Court

Pushpavalli vs Keloth Thazhakuniyil Nishaj on 17 October, 2024

                                                      2024:KER:79222
OP(C) Nos.1139/2021, 2140/2022
                                   -1-

              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
                                      -2-




             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
                                   -3-



              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
                                      -4-

     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
                                    -5-


                             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

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

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

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

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

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

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.