ESSAR TELECOM INFRASTRUCTURE PVT LTD Vs. MOLY WILSON

JUDGEMENT

(1.) PETITIONER is the third additional plaintiff in O.S.No.122 of 2010 of the Court of learned Munsiff, Ottappalam. Originally that suit was filed by respondents 1 and 2 for a decree for prohibitory injunction against respondents 3 and 4 against the latter obstructing their use of plaint schedule road which they claimed, is a municipal road and hence the public have right of access. Learned Munsiff passed Ext.P2, order of status quo. While so, petitioner got impleaded as the third plaintiff claiming that he is a licensee under the first plaintiff to install mobile tower in the property of first plaintiff and it has to carry materials for installation of mobile tower through the road in question. PETITIONER filed I.A.No.2435 of 2010 for an order of injunction to restrain respondents 3 and 4 from causing any obstruction. Respondents 3 and 4 contended that the road in question is a private road belonging to the S.N Trust which is a registered society and which is to be represented by its Secretary, third respondent is only the Chairman of a local committee of the S.N Trust incompetent to represent the said Trust and the fourth respondent is only the Principal of the school to which the road in question leads. Learned Munsiff dismissed the application for injunction. PETITIONER filed C.M.A.No.11 of 2011 before learned Sub Judge, Ottappalam and moved I.A.No.965 of 2011 for an order of interim, prohibitory injunction. That application was dismissed by the learned Sub Judge which is challenged in this proceeding. Learned counsel has contended that notwithstanding the nature of the road in question what is prayed for in I.A.No.965 of 2011 is only that respondents 3 and 4 shall not cause obstruction to the petitioner carrying materials to the property of first plaintiff for installation of mobile tower. It is also pointed out that the courts below proceeded on a wrong footing that at the entrance portion of the road in question there is a gate. Report submitted by the Advocate Commissioner does not show that ehre is any such gate. There is only an arch placed over the road mentioning the name of the school belonging to the S.N.Trust. Learned counsel for respondents 3 and 4 contend that the road is a private road belonging to the S.N.Trust and leading to its school.

(2.) THE main thrust of argument advanced by learned counsel for respondents 3 and 4 is that the road in question belongs to the S.N Trust which is not a party to the suit. It is contended that respondents 3 and 4 are not competent to represent the S.N.Trust.

(3.) HAVING regard to the circumstances stated by learned counsel, I am inclined to allow the request. Resultantly this original petition is disposed of permitting petitioner to withdraw I.A.No.2435 of 2010 without prejudice to the right, if any of petitioner to implead necessary parties to the suit and move fresh application for injunction. Learned counsel submits that petitioner would take necessary steps to withdraw C.M.A.No.11 of 2011 of the Court of learned Sub Judge, Ottappalam as well. I make it clear that if so advised it is open to the petitioner or other plaintiffs to move appropriate application for impleading necessary parties and move fresh application for injunction as circumstances warranted. I make it clear that I have not expressed any opinion on merit of the matter or the merit of applications that petitioner and other plaintiffs might prefer before learned Munsiff.