Allowed

K.J.Xavier v. K.a.Afsal

Kerala HC6 Aug 2020OP(C)/1085/2020

Case brief

AI extract

What is this about?

Original petition challenging First Appellate order granting injunction and directing demolition of wall. High Court upheld order, noting petitioners built wall after injunction declined due to pathway identification issues under Order II Rule 2 CPC, thereby frustrating suit.

What did the court decide?

Original petition allowed, Effective Appellate Order confirmed, Petitioners directed to demolish wall within two weeks, Trial Court to dispose suit within two months.

K.J.Xavier Vs K.a.Afsal — Partition | Kerala HC (2020)

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942

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OP(C).No.1085 OF 2020

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ORDER IN CMA 6/2020 DATED 29-06-2020 OF ADDITIONAL

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DISTRICT COURT, NORTH PARAVUR

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PETITIONERS/RESPONDENTS:

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1 K.J.XAVIER, AGED 53 YEARS,

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S/O. LATE K.X. JOSEPH, KOCHUKKATTU HOUSE,

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NEAR ESI DISPENSARY, UDYOGAMANDAL KARA, ELOOR KIZHAKKUMBHAGAM, ELOOR VILLAGE, PARAVUR TALUK.

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2 ANTONEETA, AGED 50 YEARS, W/O. XAVIER, KOCHUKKATTU HOUSE, NEAR ESI DISPENSARY, UDYOGAMANDAL KARA, ELOOR KIZHAKKUMBHAGAM, ELOOR VILLAGE, PARAVUR TALUK.

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3 DANI XAVIER, AGED 28 YEARS, S/O. XAVIER, KOCHUKKATTU HOUSE, NEAR ESI DISPENSARY, UDYOGAMANDAL KARA, ELOOR KIZHAKKUMBHAGAM, ELOOR VILLAGE, PARAVUR TALUK.

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4 RICHI XAVIER, AGED 25 YEARS, S/O. XAVIER, KOCHUKKATTU HOUSE, NEAR ESI DISPENSARY, UDYOGAMANDAL KARA, ELOOR KIZHAKKUMBHAGAM, ELOOR VILLAGE, PARAVUR TALUK.

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BY ADVS. SRI.K.NARAYANAN (PARUR) SMT.LISHA K.R.

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RESPONDENT/APPELLANT:

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K.A.AFSAL, AGED 39,S/O. ABDUL KHADER, KOOTTNKAL HOUSE, UDYOGAMANDAL KARA, ELOOR KIZHAKKUMBHAGAM, ELOOR VILLAGE, PARAVUR TALUK. 683 501.

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BY ADV. SRI.B.JAYASANKER

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OPC 1085/20

JUDGMENT

The defendants in O.S.No.73/2020, on the

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files of the Munsiff's Court, North Paravur,

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are the petitioners herein.

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According to the petitioners, the

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suit had been filed by the respondent herein,

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seeking a declaration of right of way through the plaint C schedule property and for the fixation of its boundaries. They say that

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along with the suit, the respondent moved an application for interim injunction

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restraining them from trespassing into the plaint C schedule property, but that the Trial Court dismissed the same through an order dated 06.03.2020, a copy of which has been placed on record as Ext.P3; and that

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they then consequently, constructed a wall to protect their property.

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The petitioners say that, however,

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when the respondent assailed Exhibit P3 order

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of the Trial Court before the First Appellate

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Court, it has now issued Ext.P4 order not

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merely granting the injunction as sought for, but also directing that the construction made by them be demolished. They say that this order is improper and therefore, that they

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are constrained to assail it before this Court.

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Sri.K.Narayanan, learned counsel

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appearing for the petitioners, began his submissions by saying that even if the First

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Appellate Court is found to be right in having granted the injunction, it could not have directed to demolish the wall, which has already been constructed by his clients, since there was no such prayer and no request for mandatory injunction has been made. He

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says, therefore, that this Court may set aside Ext.P4 and direct the Trial Court to expedite the disposal of the suit.

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In opposition to the afore

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submissions made on behalf of the petitioners, Sri.B.Jayasankar, learned

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counsel appearing for the respondent, began by saying that the primary issue between the parties is as to the existence of the pathway which is described as plaint C schedule property. He says that, in fact, these issues have already been considered by the Munsiff's

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Court, North Paravur in Ext.P2 judgment, wherein, such a way was found, but no relief was granted solely because the same had not been properly identified. He says that, therefore, that the action of the petitioners in having constructed a wall through plaint C schedule property must be construed to be an affront on the authority of Courts and an attempt to interfere with the processes of law. He says that this is more so because, after Ext.P3 order had been issued by the

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Trial Court, his client had time to file an

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appeal before the First Appellate Court, within which time the petitioners had constructed the wall through plaint C schedule property. He asserts that it is now

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well settled in law that in such circumstances the First Appellate Court was justified in issuing orders to restore the property, under the concept of restitution, so that the suit can then be disposed of on its merits.

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When I hear the afore submissions, it

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is without doubt, as is also admitted by Sri.K.Narayanan, learned counsel for the petitioners, that the construction through the plaint C schedule property has been made

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by the petitioners only after Ext.P3 order had been issued by the Trial Court. As I have

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already seen above, his only contention is that in the absence of a prayer for mandatory

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injunction thereafter, the First Appellate

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Court could not have issued Ext.P4 order.

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I am afraid that I cannot accede to

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this contention of Sri.K.Narayanan, because

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the fact remains that in Ext.P3 the interim injunction was declined on the ground that the earlier Ext.P2 judgment operates as a bar under Order II Rule 2 of the Code of Civil Procedure and that plaint C schedule property has not been properly identified. These are

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matters that the Trial Court could have considered only after evidence was led particularly when, through Ext.P2 judgment,

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the presence of a pathway of a particular width has already been found in favour of the respondent herein. When that is so and the Trial Court issued Ext.P3 dismissing the respondent's application, it was only fair and prudent on the part of the petitioners to have waited at least until the appellate

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period had been over. However, what they have

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done in this case is to rush and make a

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construction through the plaint C schedule property, thus frustrating the very suit itself.

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I am, therefore, certain that in the

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quest of this Court to maintain the majesty

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of the processes of law, it cannot be found

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fault with if this Court also confirms Ext.P4 and directs that the demolition of the wall be completed by the petitioners within a time

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frame. This is also because, Sri.K.Narayanan, learned counsel for the petitioners, being confronted with the above, conceded that if this Court orders the suit itself to be tried within a time frame, his clients are willing to demolish the wall constructed by them in

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the plaint C schedule property. He, of

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course, prays that the suit be directed to be disposed of within 30 days.

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In the afore circumstances, I am

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certainly of the view that it is only in the propriety of justice that both parties are ordered to be restituted to the same position as is available in the suit, so that the same can be disposed of within a time frame - albeit, not within the 30 days as requested by Sri.K.Narayanan - but within a period of two months from the date of receipt of a copy of this judgment.

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Resultantly, this Original Petition is allowed and Ext.P4 order of the First Appellate Court is confirmed, with a consequential direction to the petitioners to demolish and remove the wall constructed by them through the plaint C schedule property - within a period of two weeks from the date of receipt of a copy of this judgment; and on them approaching the Trial Court thereafter with a memo showing compliance of these

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directions, the said Court will take up the

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suit and dispose it of finally within a period of two months therefrom, after affording necessary opportunity to both sides.

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Needless to say, if the petitioners do not comply with the directions with respect to the demolition of the wall, the respondent is at full liberty to approach this Court with an appropriate I.A., so that this Court can take further action as per law.

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In order to enable the Trial Court to act in terms of the directions in this judgment,

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I direct the parties to complete their pleadings within a period of one week from the date of receipt of a copy of this judgment.

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Sd/-

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DEVAN RAMACHANDRAN

JUDGE

OPC 1085/20

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. 425/2013 ON THE FILE OF THE MUNSIFF COURT, N. PARAVUR DATED 17.7.2013. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN O.S 425/2013 DATED 30.08.2019 OF THE MUNSIFF COURT, NORTH PARAVUR. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 6.3.2020 IN I.A. NO.2/2020 IN O.S. 73/2020 ON THE FILE OF THE MUNSIFF COURT, N. PARAVUR. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 29.6.2020 IN C.M.A.6/2020 ON THE FILE OF THE ADDL. DISTRICT COURT, N. PARAVUR.

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/TRUE COPY/

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P.A. TO JUDGE

K.J.Xavier v. K.a.Afsal

Case brief

What is this about?

What did the court decide?

K.J.Xavier v. K.a.Afsal

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

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