Samson, s/o Ainikkal Varghese and P. H. Sainudheen Bava v. Varghese, s/o Thaikkanadan Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **MONDAY, THE 17TH DAY OF JUNE 2013/27TH JYAISHTA 1935** ## **OP(C).No. 1917 of 2013 (O)** **--------------------------IA NO.2007/2013 OF DISTRICT AND SESSIONS COURT, THRISSUR ....** **PETITIONER(S): --------------------------** ## **1. SAMSON, S/O.AINIKKAL VARGHESE, POST MARATHAKKARA, THRISSUR DISTRICT.** ## **2. P.H.SAINUDHEEN BAVA, PULLIKKARA HOUSE, MULLAKKARA, THRISSUR DISTRICT.** **BY ADVS.SRI.SAJU.S.A SRI.K.C.KIRAN** **RESPONDENT(S):** **----------------------------** **VARGHESE, S/O.THAIKKADAN THOMAS, VILVATTOM VILLAGE, POST VILVATTOM, THRISSUR DISTRICT.** **BY ADVS. SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **OP(C).No. 1917 of 2013 (O)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **-------------------------------------** - **P1- TRUE COPY OF A SKETCH SHOWING THE LIE OF THE ESTATE AND THE WAY CARVED OUT.** - **P2- THE TRUE COPY OF THE REGISTERED ASSIGNMENT DEED DATED 16.12.1967.** - **P3- THE TRUE COPY OF THE REGISTERED PARTITION DEED DATED 27.02.1988.** - **P4- THE TRUE COPY OF THE PLAINT IN O.S.1876/2013 ON THE FILE OF THE COURT OF THE MUNSIFF OF THRISSUR DATED 19.04.2013.** - **P5- TRUE COPY OF THE APPLICATION FOR INJUNCTION I.A.NO.1616/2013 IN O.S.NO.1876/2013, MUNSIFF COURT, THRISSUR, DATED 19.04.2013.** - **P6- THE TRUE COPY OF THE ORDER OF INJUNCTION PASSED BY THE DISTRICT COURT, THRISSUR IN I.A.NO.1616/2013 IN O.S.NO.1876/2013 ON ITS FILE DATED 23.4.2013.** - **P7- THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS IN EXT.P5 DATED 22.05.2013.** - **P8- THE TRUE COPY OF I.A.NO.2007/2013 FILED BY THE PLAINTIFF DATED 26.04.2013.** - **P9- THE TRUE COPY OF THE COUNTER FILED BY THE DEFENDANTS IN EXT.P8 APPLICATION DATED 10.05.2013.** **P10- TRUE COPY OF ORDER IN I.A.2007/2013 ON 14.05.2013.** **RESPONDENT(S)' EXHIBITS:** **----------------------------------------N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.N.RAVINDRAN, J. --------------------------O.P.(C) No.1917 of 2013 -------------------------Dated this the 17[th] day of June, 2013** ## **J U D G M E N T** The petitioners are the defendants in O.S.No.1876 of 2013 on the file of the Court of the Munsiff of Thrissur. The respondent is the plaintiff therein. The suit was instituted on 20.4.2013 in the vacation court. The respondent has in the plaint, a copy of which is on record as Ext.P4, prayed for a permanent prohibitory injunction restraining the defendants and their men from interfering with the quarrying activity being conducted by him in the plaint schedule property or from committing acts of waste therein or from obstructing the movement of vehicles. It was alleged in paragraph 5 of the plaint that the plaintiff has come to understand that the defendants are taking steps to lock the gate and to obstruct the movement of vehicles. Along with the plaint, the respondent/plaintiff filed I.A.No.1616 of 2013 for an interim order of injunction restraining the defendants and their men from interfering with the quarrying activity being conducted by him in the plaint schedule property or from committing acts of waste therein or from interfering with the movement of vehicles through the public pathway. The relief portion of I.A.No.1616 of 2013 is extracted below: O.P.(C) No.1917 of 2013 2 “§æÄÞKߺîá çÌÞÇßMßAáK ¥ËßÁÕßxßW ÉùÏáK µÞøÃB{ÞW ®ÄßV µfßµç{Þ, ¿ßÏÞøßÏáæ¿ ØÙÞÏßµç{Þ, ÙV¼ßMGßµ ÕÙµ{ßW ®æLCßÜᢠÈÞÖ dÉÕãJßµZ æºÏîáµçÏÞ, ÙV¼ßAÞøX ÙV¼ßMGßµ ÕÙµ{ßW µøßCW µbÞùß dÉÕVJßMßAáKÄßæÈ ¯æÄCßÜᢠÕßÇJßW Ä¿TæM¿áJáµçÏÞ, ÙV¼ßAÞøæa æÄÞÝßÜÞ{ßµ{á¢, µøßCÜïᢠ¥ÈáÌt ØÞÎd·ßµ{ᢠæµÞIáçÉÞµáKÄßÈᢠÎxᢠÕøáK ÕÞÙÈB{áç¿ÏᢠdÉçÕÖÈJßÈÞÏáU æÉÞÄáÕÝß Ä¿TæM¿áJáµçÏÞ æºÏñáçÉÞµøáæÄKí ²øá ¥¿ßÏLßø §¿AÞÜ ©JøÕí ÎâÜ¢ ÈßçøÞÇߺîáJøÕáIÞµÞX ¥çÉfßAáKá.” 2. The word “pothuvazhi” (public pathway) is singularly lacking in the plaint. On the application for interim injunction (I.A.No.1616 of 2013) the vacation court passed an ad-interim order of injunction on 20.4.2013. The vacation court also appointed an Advocate Commissioner who inspected the plaint schedule property at 6 PM on 20.4.2013 and submitted a report dated 23.4.2013. The Advocate Commissioner gave notice to the plaintiff and the second defendant at 6 PM on 20.4.2013. He did not however give notice to the first defendant. The Advocate Commissioner reported that two gates, 5 feet tall and 11 feet wide exist in the plaint schedule property and both the gates were open at the time of inspection. 3. Upon receipt of notice, the defendants entered appearance and filed objections. Ext.P7 is a copy thereof. Along with it, they also produced documents in support of their contentions. They contended that the plaintiff does not have a right of way through their properties. They also disputed the right of the plaintiff to use the private pathway in existence in their property. In the meanwhile, the plaintiff filed O.P.(C) No.1917 of 2013 3 I.A.No.2007 of 2013 in the vacation court alleging that after the interim order was passed on 20.4.2013, at about 1.30 PM on 25.4.2013, the gate noticed by the Advocate Commissioner was locked. The plaintiff also filed I.A.No.2005 of 2013 for an order directing the Advocate Commissioner who inspected the property on 20.4.2013 to once again inspect the property and to submit a report. They also filed I.A.No.2006 of 2013 under Order 39 rule 2A of the Code of Civil Procedure to prosecute the defendants for violating the order of injunction and I.A.No.2007 of 2013 to open the gate and to restore the movement of vehicles through the pathway. 4. Pursuant to the order passed by the vacation court on I.A.No.2005 of 2013, the Advocate Commissioner inspected the plaint schedule property on 29.4.2013 and submitted a report to the effect that gate which was open during his earlier visit was found locked. The petitioners resisted I.A.No.2007 of 2013 by filing written objections. They contended that the plaintiff does not have a right of way through their property and that the road referred to by the Advocate Commissioner in his report submitted on 23.4.2013 is a private pathway belonging to them and others. They also disputed the right of the plaintiff to use the said pathway. The vacation court considered the rival contentions, allowed I.A.No.2007 of 2013 by 4 O.P.(C) No.1917 of 2013 Ext.P10 order passed on 14.5.2013 and deputed the Amin of the court to break open the lock of the gate found at the entrance of the way to the plaint schedule property. The vacation court further directed that if there is any resistance by the respondents therein, the Amin is at liberty to seek police aid to give effect to the interim order. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India. 5. I heard Sri.T.Krishnanunni, learned Senior Advocate appearing for the petitioners and Sri.Thomas Chazhukkaran, learned counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. The vacation court has by the impugned order virtually directed enforcement of an ad-interim order of injunction with police aid. A learned single Judge of this Court has in **Kochupennu Ambujakshi and Another v. Velutha Kunju Vasu Channar and Others** (1992 (2) KLJ 606) held that only a final order of injunction passed under rule 1 or 2 of Order 39 can be enforced with the assistance of the police. It was held that it would be premature and dangerous to enforce an ex-parte order of injunction when its continuance is opposed. In the light of the binding decision of this Court, I am of the opinion that the court below erred in directing the Amin to seek police aid to enforce the ad-interim order of injunction O.P.(C) No.1917 of 2013 5 passed by the vacation court on 20.4.013. 6. That apart, the nominated District Judge hearing interlocutory applications in a suit filed during the vacation can make only provisional orders and an order on the merits can be passed only by the Munsiff Court/Sub Court after the re-opening of the courts. This court has in **Viswanathan v. District Judge** (1989 (2) KLT 37) held that an order passed after hearing the other side can also be a provisional order. In the instant case, the impugned order cannot be said to be a provisional order. The vacation court has by the impugned order which was passed without hearing the other land owners who have a right over the disputed pathway, permitted the plaintiff to make use of the pathway and to take vehicles to his quarry. The plaintiff has no case in the plaint that he has a right of way through the pathway noticed by the Advocate Commissioner. The plaint does not contain any description of the pathway. The only property described in the schedule to the plaint is the property belonging to the plaintiff. A description of the pathway through which the plaintiff claims right of way has not been set out in the plaint. He has also not sought a declaration that he has a right of way through the lands belonging to the defendants. Apart from vaguely alleging in paragraph 3 of the plaint that there is a way passing through a rubber 6 O.P.(C) No.1917 of 2013 plantation and coconut garden having a width of 5 metres and he has a right to use the said pathway, the plaintiff has not chosen to set out the pathway in the plaint, but has chosen to describe the said pathway as a public pathway only in the application for injunction. The defendants have in their objections to the application for injunction contended that the pathway which is stated to be a public pathway is a private pathway over which four persons alone have the right of way. In such circumstances, I am of the considered opinion that the vacation court ought to have considered the question whether the plaintiff has made out a prima facie case warranting the grant of an interim order of injunction before proceeding to issue a direction to the Amin to break open the gate which leads to the pathway over which persons other than the defendants have a right of way. In such circumstances, I am of the opinion that the order passed by the court below cannot be sustained. As regards the relief sought in I.A.No.1616 of 2013, I am of the opinion that an ad-interim order of injunction could not have been granted especially in the absence of a description of the pathway over which the plaintiff claims right of way, in the plaint. As stated earlier, apart from vaguely alleging in paragraph 3 of the plaint that he has a right of way, the plaintiff has not set out the pathway in the plaint. Where exactly the pathway O.P.(C) No.1917 of 2013 7 begins and where exactly it ends is left to conjecture and imagination. Such being the situation, I am of the opinion that an order of the kind which is impugned in the original petition could not have been passed. I accordingly allow the original petition, set aside Ext.P10 order passed on 14.5.2013 in I.A.No.2007 of 2013 as also the adinterim order of injunction passed on I.A.No.1616 of 2013 in O.S.No.876 of 2013 and direct the court below to dispose of I.A.Nos.1616 of 2013 in O.S.No.876 of 2013 after hearing both sides and after affording them an opportunity to produce documents in support of their rival contentions. Needful in the matter shall be done and revised orders passed on the application for injunction within one month from the date of receipt of a copy of this judgment. ## **(JUDGE)** vps O.P.(C) No.1917 of 2013 8 O.P.(C) No.1917 of 2013 9