Dismissed

George Joseph v. Thressa George

Kerala HC29 Sept 2016CRP/290/2013

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition against a lower court's refusal to grant police protection for a disputed pathway. The court held that the petitioner, by modifying and concreting the path without orders, altered the status quo, justifying the dismissal.

What did the court decide?

The petitioner's application for police protection was quashed by the lower court; revision dismissed with direction to expedite suit disposal.

George Joseph Vs Thressa George — Property and Title | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938

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CRP.No. 290 of 2013 ()

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IA 1232/2012 IN OS NO. 16/2009 OF MUNSIFF'S COURT,

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ETTUMANOOR

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PETITIONER(S)/PETITIONER :

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-------------------------

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GEORGE JOSEPH, AGED 41 YEARS, ARAKKAPARAMBIL HOUSE,KORUTHODU P.O., EDAKKUNNAM KARA, ERUMELY VADAKKU VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DIST

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BY ADVS.SRI.SANTHAN V.NAIR

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SRI.V.GOPIKRISHNA SRI.V.V.MITHUN

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RESPONDENT(S)/RESPONDENT:

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THRESSA GEORGE

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W/O.LATE GEORGE VARGHESE, VAZHAKKALAYIL HOUSE, PATTITHANAM P O, KANAKKARY KARA, KANAKKARI VILLAGE, KOTTAYAM DIST-PIN-686631

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP.No. 290 of 2013 ()

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APPENDIX

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PETITIONER'S ANNEXURS :

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ANNEXURE A: COPY OF THE PLAINT FILED IN OS N. 165/2009 BEFORE THE MUNSIFF'S COURT, ETTUMANOOR.

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ANNEXURE B: COPY OF THE INJUNCTION ORDER IN THE FORM OF STATUS QUO DT 9/4/2012 IN IA NO. 763 OF 2009 IN OS NO. 165/2009.

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ANNEXURE C: COPY OF THE COMMISSION REPORT DT 27/8/2009 FILED IN OS NO. 165/2009.

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ANNEXURE D: COPY OF THE IA NO.1232/2012 IN S N. 165/2009. ANNEXURE E: COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN IN IA NO. 1232 OF 2012.

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RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

K.RAMAKRISHNAN, J.

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C.R.P. No.290 of 2013

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Dated this the 29^th day of September, 2016

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ORDER

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The revision has been filed by the revision petitioner challenging the order passed by the court below declining to grant police protection to maintain status quo under section 115 of the Code of Civil Procedure.

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It is alleged in the petition that the petitioner filed Annexure-A suit as O.S.165/2009 on the file of the Munsiff Court, Ettumanoor for declaration of easement right over the plaint B- Schedule pathway. He also filed an application for injunction as I.A.763/2009 and the court below after hearing both sides passed an order of status quo by order dated 29.4.2012. The commissioner was taken out and the commissioner filed Annexure-C report. Thereafter the petitioner filed Annexure-D application as I.A.1232/2012 for police protection to implement the status quo order as according to the revision petitioner, the respondents are trying to obstruct the use of the pathway. Respondent filed Annexure-E objection. After considering the submissions made by both the sides the learned Munsiff dismissed the application which is under challenge in the above revision.

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Heard Sri.Santhan V. Nair, counsel appearing for the revision petitioner as none appeared for the respondent though notice

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C.R.P. No.290 of 2013

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sent in the address shown in the lower court did not returned and in spite of notice has been served on the counsel appearing for the respondent in the court below.

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The counsel for the revision petitioner submitted that the court below was not justified in rejecting the application. The revision petitioner has not changed the character of the pathway, but he had only repaired and maintained the pathway, so that will not amount to changing the status quo order passed by the court below and the court below ought to have allowed the application.

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It is an admitted fact that the petitioner filed O.S.165/2009 before the Munsiff Court, Ettumanoor for declaration of easement right over plaint B-Schedule pathway and for consequential injunction. He also filed an application for injunction as I.A.763/2009 and the court below had ordered status quo by order dated 9.4.2012. A commission has been taken out and the commissioner filed a report showing the present status of the pathway. According to the petitioner, since the first defendant obstructed the pathway, he filed I.A.1232/2012 for implementing the status quo order by police protection. The respondent filed Annexure-E objection wherein he had stated that he had not violated any order of the court or committed breach on any order passed by the court below. She has not caused any obstruction to the pathway as well. On the other hand, the petitioner who

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C.R.P. No.290 of 2013

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destroyed the portion of the property by plying heavy goods vehicle through the same and after such obstruction he himself had reconstructed the same. He has no right to put up any modification in the way. In order to escape from the prosecution, the petitioner has laid this petition with mala fide intention and prayed for dismissal of that application.

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It is seen from the order of the court below that, the petitioner himself had allowed heavy vehicles to be plied through the disputed pathway and to protect the wall which was slanting down he had reconstructed the same. He had also concreted the disputed pathway at his expenses. All these things were done by the revision petitioner without getting any orders from the court. The submission made by the counsel for the revision petitioner that status quo means and intended only the right of the user of the pathway in fact and it will not the right of the petitioner to repair or maintain the pathway. It may be mentioned here that, when there is dispute regarding the right of pathway itself which has to be decided by the court, then the petitioner has no right to do any modification or repair or do maintenance work in the pathway without getting any order of the court. The court below had ordered status quo for the purpose of keeping the existence of the pathway as it was as on the date of filing of the suit and not otherwise. So under such circumstances, the court

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C.R.P. No.290 of 2013

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below was perfectly justified in coming to the conclusion that the petitioner himself has made some modification in the guise of maintenance of the pathway which was not there at the time when the commissioner inspected the property without the concurrence of the court, and rightly held that the petitioner is not entitled to get the relief claimed for in the petition and rightly dismissed the petition. So there is no merit in the revision as there is no illegality committed by the court below warranting interference of this court invoking the revisional jurisdiction. Considering the fact that the case is of the year 2009, the court below is directed to expedite disposal of the suit as expeditiously as possible at any rate within four months from the date of receipt of this order.

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Registry is directed to communicate this order to the concerned court, immediately.

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With the above observation the revision petition is dismissed.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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George Joseph v. Thressa George

Case brief

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George Joseph v. Thressa George

Case brief

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