Dismissed

B. Surendradas v. Wilson

Kerala HC17 Aug 2016OP(C)/1685/2016

Case brief

AI extract

What is this about?

This single-paragraph order allowed a writ petition challenging a stay order suspending an interim injunction. The High Court directed the Sub Court to expedite the civil miscellaneous appeal and dispose of it within three months to expedite the disposal of the trial court proceedings.

What did the court decide?

The appellant was directed to file an application to vacate the stay on the stay order before the subordinate court.

B. Surendradas Vs Wilson — 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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WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938

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OP(C).No. 1685 of 2016 (O)

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I.A. NO.46/2016 IN CMA. NO.2/2016 OF SUB COURT, NEYYATTINKARA.

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PETITIONER(S):

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B. SURENDRADAS, S/O LATE BHANU PANICKER, AGED 60, SREEVISAKH, AMBALATHARA, POONTHURA P.O., THIRUVANANTHAPURAM.

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BY ADVS.SRI.K.B.PRADEEP, SRI.MILESH.V.PAVIYALA.

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RESPONDENT(S):

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WILSON,

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S/O VELAYUDHAN NADAR, AGED 60, MADAPPAZHINJI VEEDU, KARODE VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695 506.

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BY ADVS. SRI.S.V.PREMAKUMARAN NAIR, SRI.R.T.PRADEEP.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 1685 of 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO.1103/2014. EXHIBIT P2 TRUE COPY OF THE AD INTERIM INJUNCTION PASSED I.A. NO.6281/2014 DATED 09/11/2015 IN EXT.P1 SUIT. EXHIBIT P3 TRUE COPY OF MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL NO.2 OF 2016 IN THE FILE OF THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA. EXHIBIT P4 TRUE COPY OF THE IA.NO.46/2016 IN EXT.P3 APPEAL. EXHIBIT P5 TRUE COPY OF THE STAY ORDER DATED 19.01.2016 IN EXT.P4.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K.RAMAKRISHNAN, J.

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O.P.(C) No.1685 of 2016

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Dated this the 17^th day of August, 2016

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ORDER

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This original petition was filed by the petitioner challenging Ext.P5 order passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner filed Ext.P1 suit as O.S.No.1103/2014 of Munsiff's Court, Neyyattinkara for injunction restraining the respondent from obstructing the pathway through plaint B-schedule, which they have obtained as per a grant. The petitioner also filed I.A.No.6281/2014 and after hearing both sides Ext.P2 order was passed by the trial court granting interim injunction, restraining the defendant from interfering the right of usage of pathway through plaint-B schedule. The respondent herein filed Ext.P3 Civil Miscellaneous Appeal as CMA No.2/2016 before the Sub Court, Neyyattinkara and filed Ext.P4 application as I.A.No.47/2016 to suspend the interim injunction granted by the lower court. After hearing both sides, it appears that Ext.P5 order was passed by the appellate court which is under challenge.

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Though notice was issued for the respondent, he did not appear. I have called for a report from the court below regarding the present stage of the civil miscellaneous appeal and time required for

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O.P.(C) No.1685 of 2016

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disposal of that appeal and the Sub Judge, Neyyattinkara has sent a report which reads as follows:

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“CMA 2/16 has been filed challenging the order passed by the court of the Principal Munsiff, Neyyattinkara in IA 6281/14 in OS 1103/14.

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At present, the case stands posted to 5/9/2016. The applicant had filed IA 47/16 for issuance of a commission to measure the properties. The said application was allowed by my learned predecessor in office with the consent of the respondent, who is the petitioner in OP(C) 1685/16. The case stands posted for commission report. Since measurement is required, some time will be necessary to get the property measured and the report filed. Further, I had allowed IA 498/16 which was filed by the respondent for issuance of a commission for local inspection. The report in the said application also is awaited.

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In this regard, I may further submit that 105 Civil Miscellaneous Appeal upto the year 2015 are pending before this court. Among them, 34 CMAs upto the year 2013 have been included in the target fixed by the Hon'ble High Court of Kerala for the year - 2017. The total number of cases included in the target is 919 and that includes 470 sessions cases also.

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I may further submit that in case the Hon'ble High Court of Kerala finds it necessary to issue direction for time bound disposal of CMA 2/16, a period of 3 months from the date of filing of commission report in IA 47/16 may kindly be granted to dispose of the above case.”

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Heard Sri.K.B.Pradeep, counsel appearing for the petitioner

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and perused the report.

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The counsel for the petitioner submitted that, it is unusual

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O.P.(C) No.1685 of 2016

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that an appellate court suspends the interim order of injunction granted by the court below at the interim stage itself. That caused hardship to the petitioner. He is prepared to hear the case and cooperate with the disposal of the case itself.

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It is an admitted fact that the petitioner filed Ext.P1 suit as O.S.No.1103/2014 for permanent prohibitory injunction restraining the respondent herein from obstructing his ingress and egress through plaint B-schedule pathway which he has said to have obtained by grant. It is also an admitted fact that along with the suit interim application was filed as I.A.No.6281/2014 for interim injunction and after hearing both sides Ext.P2 order was passed granting interim injunction in favour of the petitioner. It is also an admitted fact that the respondent filed Ext.P3 appeal as C.M.A.No.2/2016 before the Sub Court, Neyyattinkara and also filed Ext.P4 application as I.A.No.47/2016 for suspending the interim order passed and as per Ext.P5 order that the appellate court had stayed the operation of the injunction granted by the court below.

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It is submitted by the counsel for the petitioner that though the interim application was heard in detail, no orders have been passed in that application to vacate the stay order passed and on account of the suspension order, the way granted as per grant has

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O.P.(C) No.1685 of 2016

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been obstructed by the respondent. However while admitting the petition, this court has granted a stay of operation of Ext.P5 order for a period of three weeks and that was subsequently extended from time to time.

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It is true, the report shows that Sub Court Neyyattinkara is a heavy court, but when an interim order obtained was suspended and the parties are facing difficult on account of the suspension order, then efforts must be made by the courts to see that the Civil Miscellaneous Appeal itself is disposed of at the earliest, so that the proceedings of the trial court will not be stalled on account of the pendency of the civil miscellaneous appeals. However, it is also seen from the impugned order that, the impugned order was passed on the basis of the interim report obtained, the allegations of which are being disputed by the counsel for the petitioner. It is also seen from the report of the Sub Judge that a detailed commission report is called for and that is awaiting and it is mentioned that the appeal itself can be disposed of within three months of filing the commission report ordered as per order in I.A.No.47/2016. So considering the circumstances, this court feels that the petition can be disposed of as follows:

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The Sub Judge, Neyyattinkara is directed to expedite disposal of C.M.A.No.2/2016 as expeditiously as

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O.P.(C) No.1685 of 2016

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possible at any rate within three months from the date of receipt of this judgment. Efforts must be taken by the Sub Judge to get the Commissioner's report at the earliest, especially when that court had relied on an interim report and suspended the injunction granted by the trial court. The interim order passed by this court suspending Ext.P5 order will be in force till the court below disposes either I.A.No.46/2014 or the Criminal Miscellaneous Appeal itself, which ever is earlier. The stay order granted by this court should not be taken advantage by the petitioner to create a new way through plaint-B schedule property or commit any act of waste in plaint -B schedule property. Registry is directed to communicate this order to the concerned court, immediately.

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With the above direction and observation the petition is disposed

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of.

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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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B. Surendradas v. Wilson

Case brief

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B. Surendradas v. Wilson

Case brief

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