Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN THURSDAY, THE 4TH DAY OF JULY 2013 13TH ASHADHA, 1935 OP(C).No. 2178 of 2013 (O) ------------------------------------ PETITIONER(S): ----------------------- GEEVARGHESE, S/O.CHACKO, AGED 6 YEARS, ANEESH BHAVAN, KUZHIMATHICAD MURI, KAREEPRA VILLAGE, KOTTARAKARA TALUK. BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.P.A.ISMAIL SRI.DIPU JAMES RESPONDENT(S): -------------------------- K.C. MATHEWS, S/O.CHACKO, AGED 6 YEARS, KIRSTY COTTAGE, KUZHIMATHIKADU, KAREEPRA VILLAGE, KOTTARAKARA TALUK ”
506. BY ADV. SRI.SYAM J SAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ OP(C).No. 2178 of 2013 (O) ------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1. TRUE COPY OF THE PLAINT DATED 17 11.2012 IN O.S.NO.655 OF 201.OF THE MUNSIFF'S COURT, KOTTARAKARA. EXHIBIT P2. TRUE COPY OF PETITION DATED 17 11.2012 IN O.S.NO.655/2012. EXHIBIT P3. TRUE COPY OF THE OBJECCTION FILED BY THE RESPONDENT IN EXT.P2 PETITION. EXHIBIT P4. TRUE COPY OF THE PLAINT IN O.S.NO.663 OF 201.DTD 20.11.2012 OF THE MUNSIFF'S COURT, KOTTARAKARA. EXHIBIT P5. TRUE COPY OF THE I.A.NO.3680 OF 201.IN EXT.P.4 SUIT. EXHIBIT P6. TRUE COPY OF THE ORDER DATED 31 05.2013 IN I.A.NO.3680 OF 2013.EXHIBIT P7. TRUE COPY OF THE C.M.APPEAL NO.17 OF 201.OF THE DISTRICT JUDGE'S COURT, KOLLAM. EXHIBIT P8. TRUE COPY OF I.A. NO.909 OF 201.IN C.M.APPEAL NO.17 OF 2013.RESPONDENT(S)' EXHIBITS --------------------------------------- NIL. TRUE COPY P.S.TO JUDGE PJ P.N.RAVINDRAN, J.
----------------------------------------- O.P.(C).No.2178 of 2013 ----------------------------------------- Dated this the 4th day of July, 2013 JUDGMENT The petitioner is the plaintiff in O.S.No.655 of 2012 on the file of the Court of the Munsiff of Kottarakkara. The respondent herein and his brother Sri.K.C.Johnson are the defendants therein. In that suit the petitioner has prayed for a permanent prohibitory injunction restraining the defendants from constructing a boundary wall by encroaching upon the plaint B schedule pathway which lies to the north of the plaint A schedule property belonging to the petitioner. Along with the plaint, a copy of which is produced as Ext.P1, the petitioner has filed an application for temporary injunction in terms of the relief of injunction prayed for in the plaint. Orders have not yet been passed on the application and it is still pending. The respondent has instituted O.S.No.663 of 2012 in the Court of the Munsiff of Kottarakkara, joining the petitioner herein, his son Sri.Aneesh and two others as defendants for a decree permitting him to recover the sum of Rs.30,000/- towards damages and for a permanent prohibitory injunction O.P(C)No.2178/2013 -:2:- restraining the defendants from obstructing the reconstruction of the demolished boundary wall and to recover the loss sustained from them. The principal allegation in that suit is that the defendants in O.S.No.663 of 2012 demolished the compound wall on 4.11.2012. Along with the plaint in O.S.No.663 of 2012 the respondent herein filed I.A.No.3680 of 2012 for an interim order of injunction restraining the defendants in that suit from causing any obstruction to the re-construction of the south-eastern portion of the demolished compound wall. After hearing the learned counsel on both sides, by Ext.P6 order passed on 31.5.2013 the Court of the Munsiff of Kottarakkara allowed the said application and appointed an Advocate Commissioner to supervise the re-construction work. Aggrieved thereby the petitioner and the other defendants in O.S.No.663 of 2012 have filed C.M.A.No.17 of 2013 in the Court of the District Judge of Kollam accompanied by I.A.No.909 of 2013 to stay the operation of Ext.P6 order passed by the Munsiff Court. In this original petition the petitioner prays for an order directing the Court of the O.P(C)No.2178/2013 -:3:- District Judge of Kollam to dispose of C.M.A.No.17 of 2013 and I.A.No.909 of 2013 within a time limit to be fixed by this Court.
2. When the original petition came up for admission hearing on 25.6.2013 this Court, while admitting the original petition, directed service of notice on the respondent by special messenger and also passed an interim order staying the operation of Ext.P6 order dated 31.5.2013 passed by the Court of the Munsiff of Kottarakkara on I.A.No.3680 of 2012 in O.S.No.663 of 2012 for a period of two weeks. The respondent has entered appearance through counsel.
3. Heard learned counsel on both sides. After hearing the learned counsel on both sides and on perusing the pleadings and the materials on record I am of the opinion that the proper course would be to direct the lower appellate court, where C.M.A.No.17 of 2013 is pending, to hear and dispose of the appeal expeditiously and to maintain the interim order passed by this Court on 25.6.2013 until such time as the appeal is heard and disposed of. O.P(C)No.2178/2013 -:4:- I accordingly dispose of the original petition with a direction to the Court of the District Judge of Kollam where C.M.A.No.17 of 2013 is pending, to hear and dispose of the said appeal expeditiously and in any event within two months from the date on which either of the parties produce a copy of this judgment. Until such time as the appeal is heard and disposed of, the operation of Ext.P6 order dated 31.5.2013 passed by the Court of the Munsiff of Kottarakkara on I.A.No.3680 of 2012 in O.S.No.663 of 2012 shall stand stayed. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J.
--------------------------- O.P.(C).No.2178 of 2013 ---------------------------- JUDGMENT 4 h July, 2013