Allowed

Sarasamma v. Seethadevi

Kerala HC25 Feb 2019OP(C)/471/2019

Case brief

AI extract

What is this about?

The High Court allowed the Civil Original Petition, directing the trial court to restore the status quo regarding a fence on the plaintiff's property. The court ordered the issue of a commission to assist restoration and deferred the decision on expense liability to the suit.

What did the court decide?

The original petition allowed; Petitioner permitted to restore status quo in terms of Commission Reports C1 and C1(a); Court below to issue commission to assist restoration.

Sarasamma Vs Seethadevi — Execution and Attachment | Kerala HC (2019)

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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 SATHISH NINAN

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MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940

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OP(C).No. 471 of 2019

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AGAINST THE ORDER/JUDGMENT IN OS 633/2015 of PINCIPAL MUNSIFF COURT, CHERTHALA

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PETITIONER:

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SARASAMMA

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AGED 57 YEARS D/O.KAMALAKSHYAMMA, PALAYAKUNNATHU, UZHUVA, PATTANAKKAD.P.O., CHERTHALA-688529.

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BY ADVS.

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SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SRI.J.OM PRAKASH SRI.T.G.MAHESH SRI.T.G.MANOJ SRI.T.G.SANTHOSH

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RESPONDENTS:

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1 SEETHADEVI

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W/O.BHASKARA PANICKER, PALACHANATTU FROM VELIYIL, UZHUVA, PATTANAKKAD.P.O., CHERTHALA-688529.

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2 CHANDRIKA SOMAN PILLAI, W/O.SOMAN PILLAI, MATHANATHUTHARA VEETTIL, UZHUVA, PATTANAKKAD.P.O., CHERTHALA-688529.

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BY ADVS. SRI.RAAJESH S.SUBRAHMANIAN SRI.V.R.RAJESH

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(C).No. 471 of 2019

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JUDGMENT

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Petitioner is the plaintiff in a suit for

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prohibitory injunction to restrain the defendant

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from destroying the fence situated on the northern side of the plaint schedule property.

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Along with the suit, plaintiff filed an

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application as I.A No.3569 of 2015 for an interim injunction. As per order dated 09.12.2016 , the

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trial court passed an order directing the parties to maintain status quo. Though the defendant challenged the order in appeal, before the Sub Court, Cherthala in C.M.A No.45 of 2015, the same was dismissed.

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Thereafter, alleging violation of the interim

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order, the petitioner – plaintiff filed an application as I.A No.198 of 2016 seeking

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restoration of the status quo. To prove the alteration/violation of the order of status quo, the plaintiff – petitioner took out a commission, who filed Ext C2 report. It is to be noticed that along

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OP(C).No. 471 of 2019

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with the suit the plaintiff had taken out a commission who had filed Ext C1 report and Ext C1(a) rough plan, showing the nature and lie of the property as on the date of filing of the suit. The comparison of Ext C1 with Ext C2 reveals the violation alleged.

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The court below has found that the status quo

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as on the date of filing of the suit has in fact been altered. However, the court has refused to grant interim order for restoration of the status quo on the ground that there is no material to find that it was the defendant who violated the order of status quo. Learned counsel for the petitioner – plaintiff undertakes that the petitioner will not claim any expenses towards restoration of the fencing at this stage and that liability for the same could be made as a subject matter for determination in the suit. In case it is found that

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the violation has been caused at the hands of the defendants, the said expenses could be made as part

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OP(C).No. 471 of 2019

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of the costs. An application filed under Order 39 Rule 2A of the Code of Civil Procedure is pending disposal before the court.

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Having found that there has been alteration in the status quo order it is the duty of the court to see that the status quo is restored.

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In the result, the original petition is allowed. Petitioner – plaintiff is permitted to restore the status quo in terms of Exts C1 and C1(a). Court below shall issue a commission to assist the restoration. The liability regarding the expenses shall be decided along with the suit, as indicated above.

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Sd/- Sathish Ninan, Judge

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vdv

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OP(C).No. 471 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PLAINT IN O.S.NO.633/2015 DATED 16/09/2015 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, CHERTHALA.

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EXHIBIT P2 TRUE COPY OF INJUNCTION PETITION I.A.NO.3569/2015 IN O.S.NO.633/2015 DATED 15/09/2015 FILED BEFORE THE MUNSIFF COURT, CHERTHALA.

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EXHIBIT P3 TRUE COPY OF ORDER IN I.A.NO.3569/2015 DATED 09/12/2015 PASSED BY THE MUNSIFF COURT, CHERTHALA.

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EXHIBIT P4 TRUE COPY OF JUDGMENT IN C.M.A.NO.45/2015 DATED 5/09/2016 OF THE SUB COURT, CHERTHALA. EXHIBIT P5 TRUE COPY OF COMMISSION REPORT FILED BY ADV.PRAVEE PADMA DATED 17/09/2015. EXHIBIT P6 TRUE COPY OF IA.A.NO.198/2016 IN O.S.633/2015 DATED 12/01/2016 FILED BY THE PETITIONER. EXHIBIT P7 TRUE COPY OF COMMISSION REPORT DATED 29.02.2016. EXHIBIT P8 TRUE COPY OF COUNTER AFFIDAVIT IN I.A.NO.198/2016 IN O.S.NO.633/2015 DATED 29/02/2016.

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EXHIBIT P9 TRUE COPY OF THE ORDER DATED 21.1.2019 IN I.A.NO.198/2016 IN O.S.633/2015.

Sarasamma v. Seethadevi

Case brief

What is this about?

What did the court decide?

Sarasamma v. Seethadevi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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