CHANDRASEKHARAN v. C.V. RAJAPPAN

M.SASIDHARAN NAMBIAR, J............................................WP(C).No. 18044 OF 2008............................................DATED THIS THE 18th DAY OF JUNE, 2008JUDGMENTPetitioner is the defendant in O.S.130 of 2008 on the file of Additional Munsiff Court, Cherthala. Respondent is the plaintiff.I.A.656 of 2008 is an application filed under Order XXXIX Rule 1of Code of Civil Procedure for an order of temporary injunction. Under Ext.P1 order, petitioner was restrained by an order of temporary injunction from causing obstruction to the user of plaint C schedule way by respondent, plaintiff. Subsequent to the filing of I.A.656 of 2008, respondent filed I.A.730 of 2008, an application under Section 151 of Code of Civil Procedure, for adirection to respondent to restore plaint C schedule way to its original position, as found by the Commissioner at the time of his visit and reported in Ext.C1. Under Ext.P3 order, learnedMunsiff allowed that application and directed restoration of plaint C schedule way. An Amin was also deputed to restore Cschedule way to its original position. Petitioner has filed a CMAbefore Sub Court, Cherthala. According to petitioner, as acaveat was filed by respondent, he could not get an exparteorder of stay in the CMA. This petition is filed under Article WP(C) 18044/20082227 of Constitution of India to quash Ext.P3 and also for adirection to the Additional Munsiff to postpone execution of Ext.P3 order till the disposal of Ext.P6, or till the disposal of Ext.P7 application for stay filed before Sub Court, Cherthala.

Learned counsel appearing for petitioner submitted that when an appeal is pending against Ext.P1 order, learned Munsiffmay not execute Ext.P3 order and though petitioner filed Ext.P6appeal challenging Ext.P1 order and Ext.P7 application to stay the implementation of Ext.P1 order, petitioner could not get an order in view of the caveat filed by the respondent and in such circumstances, learned Sub Judge may be directed to dispose theCMA as expeditiously as possible, and Munsiff may be directed not to implement Ext.P3 order till the disposal of Ext.P7.

The question whether respondent is entitled to a right of way is a matter to be ultimately decided in the suit. Prima facielearned Munsiff, under Ext.P1 order, found that respondent hasa right of way through plaint C schedule way and petitioner is not entitled to obstruct the same. Finding that subsequent to the inspection of the Commissioner, petitioner caused obstruction to the way, under Ext.P3 order learned Munsiff directed restoration of the way. The question whether Ext.P3 order is to be sustained WP(C) 18044/20083or not depends on the correctness of Ext.P1 order. In such circumstances, petitioner is granted liberty to challenge Ext.P3order also along with Ext.P1 order in the CMA. Learned SubJudge is directed to dispose Ext.P7 application as expeditiously as possible. Learned counsel submitted that CMA is coming up for orders today. If that be so, learned Sub Judge is directed to pass appropriate order in accordance with law, in Ext.P7application, without any delay. M.SASIDHARAN NAMBIAR, JUDGElgk/-