Disposed

Rathi Kumari v. Reshmi

Kerala HC28 Oct 2013OP(C)/2590/2013

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of an original petition by transferring a pending appeal to consolidate with another before the District Court, fixing a disposal deadline, directing the appellate court to disregard an order conferring bail, and keeping the underlying injunction in abeyance.

What did the court decide?

Transferred one appeal to consolidate with another, fixed disposal deadline, directed appellate court to disregard specific order observations, and kept injunction in abeyance.

Rathi Kumari Vs Reshmi — Civil Procedure and Limitation | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935

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OP(C).No. 2590 of 2013 (O)

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(AGAINST THE ORDER IN CMA 57/2013 of DISTRICT COURT,TRIVANDRUM)

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PETITIONERS:

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RATHI KUMARI AGED 46 YEARS D/O. RADHAMMA, HAVING RESIDENCE AT "RADHA NIVAS" THITTAMANGALAM, KODUNGANOOR P.O., VATTIYOORKKAVU THIRUVANANTHAPURAM-695013.

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VIJIN

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S/O. RATHIKUMARI, RESIDING AT -DO- -DO- 695013.

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VIPIN V.

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-DO- -DO- 695013.

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BY ADVS.SRI.RAM MOHAN.G.

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SRI.G.P.SHINOD SRI.MANU V.

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SRI.GOVIND PADMANAABHAN

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RESPONDENT:

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RESHMI S., AGED 35 YEARS W/O. RAJESH, SIVAGANGA, THITTAMANGALAM KODUNGANOOR P.O., THIRUVANANTHAPURAM-695013.

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R1 BY ADV. SRI.D.AJITHKUMAR R1 BY ADV. SRI.D.JEEVAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2590 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1: A TRUE PHOTOCOPY OF THE PLAINT IN O.S NO.1693/2012 OF THE COURT OF THE THIRD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

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P2:A TRUE COPY OF IA NO 8297 OF 2012 IN OS NO 1693 OF 2012 OF THE COURT OF THE 3RD ADDITIONAL MUNSIFF'S COURT,THIRUVANANTHAPURAM

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P3:A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT P2 PETITION

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P4:A TRUE PHOTOCOPY OF IA NO 389 OF 2013 IN OS 1693 OF 2012 OF THE COURT OF THE 3RD ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

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P5:A TRUE PHOTOCOPY OF IA NO 390 OF 2013 IN OS NO 1693 OF 2012 OF THE COURT OF THE 3RD ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

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P6:A TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONERS HEREIN TOT IA NO 389 OF 2013 IN OS NO 1693 OF 2012 OF THE COURT OF 3RD ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

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P7:A TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONERS HEREIN TO IA NO 390 OF 2013 IN OS NO 1693 OF 2012 OF THE COURT OF THE 3RD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM

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P8:A TRUE COPY OF THE COMMISSION REPORT DTD 15/11/2012 IN OS NO 1693 OF 2012 OF THE COURT OF THE 3RD ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM

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P9:A TRUE PHOTOCOPY OF THE COMMISSION REPORT DTD 29/1/2013 IN OS NO 1693 OF 2012 OF THE COURT OF THE 3RD ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

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P10:A TRUE COPY OF THE COMMON ORDER DTD 4/4/2013 OF THE COURT OF THE 3RD ADDITIONAL MUNSIFF'S COURT,THIRUVANANTHAPURAM,IN IA NO 8297 OF 2012 IA NO 389 OF 2013 AND IA NO 390 OF 2013 IN OS NO 1693 OF 2012

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P11:A TRUE COPY OF THE CMA NO 57 OF 2013 BEFORE THE DISTRICT COURT, THIRUVANATHAPURAM

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P12:A TRUE COPY OF IA NO 1751 OF 2013 IN CMA NO 57 OF 2013 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM

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P13:A TRUE PHOTOCOPY OF THE CMA NO 70 OF 2013 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM

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P14:A TRUE COPY OF THE IA NO 1993 OF 2012 IN CMA NO 70 OF 2013 BEFORE THE DISTRICT COURT THIRUVANANTHAPURAM

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P15:A TRUE COPY OF IA NO.1994 OF 2013 IN CMA NO 70 OF 2013 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM

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P16:A TRUE PHOTOCOPY OF THE ORDER DTD 24/7/2013 OF COURT OF THE FIRST

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ADDITIONAL DISTRICT JUDGE,THIRUVANANTHAPURAM, IN IA NO 1751 OF 2013 IN CMA NO 57 OF 2013

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RESPONDENT(S)' EXHIBITS

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NIL

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/TRUE COPY/ VPS PA TO JUDGE

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P.N.RAVINDRAN , J.

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O.P.(C) No.2590 of 2013

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Dated this the 28^th day of October, 2013

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J U D G M E N T

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The petitioners are the plaintiffs in O.S.No.1693 of 2012 on the

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file of the Court of the Third Additional Munsiff of

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Thiruvananthapuram. The respondent is the fourth defendant therein. The suit instituted by the petitioners is one for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property belonging to them and from widening the plaint D schedule pathway, having a width of four links, to eight links after encroaching upon the southern side of the plaint A schedule property. Defendants 1 to 3 own the plaint B schedule property and the fourth defendant own the plaint C schedule property.

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Along with the plaint, the plaintiffs filed I.A.No.8297 of 2012 for an interim order of injunction restraining the defendants from trespassing into the plaint A schedule property and from widening the plaint D schedule pathway by encroaching into the southern side of the plaint A schedule property. On that application, an ad interim order of injunction was granted. Upon receipt of notice, the fourth

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O.P.(C) No.2590/2013

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defendant entered appearance and filed Ext.P3 counter affidavit in I.A.No.8297 of 2012. She also filed I.A.No.389 of 2013 (Ext.P4) seeking an interim order of injunction restraining the plaintiffs, who were joined as respondents in the said application and their men from causing any obstruction to the use of the plaint D schedule pathway. She also filed I.A.No.390 of 2013 (Ext.P5) wherein she prayed for an interim mandatory injunction directing the plaintiffs to remove the materials dumped in the pathway. The trial court considered all the three applications and passed Ext.P10 order dated 4.4.2013. By that order, the trial court allowed the applications and ordered as follows:

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“13. These petitions are allowed as follows:

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(1) I find, for the purpose of these three petitions that the width of the plaint D schedule way which situates on the southern side of A and B scheduled properties and on the northern side of plaint C scheduled property is as stated by the commissioner in Ext.C1 and C2 reports.

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(2) The defendants shall not increase the width of plaint D scheduled pathway by trespassing into the plaint A schedule property till disposal of the suit. For the purpose of these petitions I find that the southern boundary of plaint A scheduled property is on the line A-B shown in green colour in Ext.C2 report.

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(3) The plaintiffs shall not reduce the width of D scheduled way till disposal of the suit.

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(4) I hereby direct the plaintiffs (respondents in IA 390/13) to remove the obstructions in the plaint D scheduled property, which are scheduled as petition B scheduled property in IA 390/13, within 10 days from the date of this order. If they fails to comply with that direction, the petitioner in IA 390/13 will have the right to remove the petition B scheduled obstructions from the way through the process of court, and to realize the cost of the same from the respondents in IA 390/13.

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(5) Original plaintiff shall not make any further obstruction in the plaint D scheduled way till disposal of the suit.

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(6) These petitions are allowed accordingly.

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(7) No cost.”

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O.P.(C) No.2590/2013

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3. The trial court held that the width of the plaint D schedule pathway is 3.50 metres as stated by the Commissioner in Exts.C1 and C2 reports. The trial court restrained the defendants from increasing the width of the plaint D schedule pathway by trespassing into the plaint A schedule property till the disposal of the suit. The trial court held that for that purpose, the southern boundary of plaint A schedule property will be the line A-B as shown in Ext.C2 report. The plaintiffs were restrained from reducing the width of the plaint D schedule pathway till the disposal of the suit and were also directed to remove the obstructions in the plaint D schedule pathway within 10 days from the date of the order failing which the fourth defendant was permitted to remove the obstructions from the way through the process of court and to realise the cost of the same from the plaintiffs.

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Aggrieved by the common order passed on I.A.Nos.389 and 390 of 2013, the plaintiffs filed C.M.A.No.57 of 2013 in the Court of the District Judge of Thiruvananthapuram. Later, by way of abundant caution they filed C.M.A.No.70 of 2013 challenging the order in I.A.No.390 of 2013. In that appeal they filed I.A.No.1993 of 2013 to stay the operation of Ext.P10 order passed in I.A.No.390 of 2013 and I.A.No.1994 of 2013 to condone the delay of 66 days in filing C.M.A.No.70 of 2013. The plaintiffs have also filed I.A.No.1751 of

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O.P.(C) No.2590/2013 4

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2013 in C.M.A.No.57 of 2013 seeking stay of operation of Ext.P10 order passed by the Court of the Additional Munsiff of Thiruvananthapuram-III in I.A.Nos.389 and 390 of 2013. I.A.No.1751 of 2013 in C.M.A.No.57 of 2013 was heard and dismissed by Ext.P16 order passed on 24.7.2013. The said order is under challenge in this original petition filed under Article 227 of the Constitution of india.

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When this original petition came up for admission hearing on 26.7.2013, while admitting the original petition and ordering notice to the respondent, I passed an interim order staying the operation of Ext.P10 order passed by the trial court in I.A.Nos.389 and 390 of 2013 in O.S.No.1693 of 2012. The said interim order is still in force. When the original petition came up for hearing today, Sri.G.Ram Mohan, learned counsel appearing for the plaintiffs submitted that the delay in filing C.M.A.No.70 of 2013 has been condoned after notice to the respondents, that C.M.A.No.57 of 2013 is pending in the Court of the Additional District Judge-I, Thiruvananthapuram and C.M.A.No.70 of 2013 is pending in the Court of the Additional District Judge (Fast Track)-III Thiruvananthapuram and that maintaining the interim order passed by this Court on 26.7.2013, the original petition may be disposed of consolidating the appeals in one court and directing the appellate court to dispose of the appeals within a time limit to be fixed

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O.P.(C) No.2590/2013

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by this Court. Sri.D.Ajith Kumar, learned counsel appearing for the respondent did not very seriously oppose the said request. In such circumstances, I dispose of the original petition with the following directions:

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(i) In view of the fact that C.M.A.No.57 of 2013, which was filed earlier in point of time, is pending in the Court of the Additional District Judge-I, Thiruvananthapuram, I transfer C.M.A.No.70 of 2013 from the Court of the Additional District Judge (Fast Track)-III Thiruvananthapuram to the Court of the Additional District Judge-I, Thiruvananthapuram to be heard along with C.M.A.No.57 of 2013.

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(ii) The Court of the Additional District Judge-I, Thiruvananthapuram shall hear and dispose of C.M.A.No.57 of 2013 and C.M.A.No.70 of 2013 expeditiously and in any event before 31^st January, 2014.

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(iii) The court below shall dispose of the appeals untrammelled by the observations and findings in Ext.P16 order.

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(iv) Until such time as the appeals are heard and disposed of, the operation of Ext.P10 order shall be kept in abeyance.

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P.N.RAVINDRAN, (JUDGE)

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vps

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O.P.(C) No.2590/2013 6

Rathi Kumari v. Reshmi

Case brief

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Rathi Kumari v. Reshmi

Case brief

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