RATHIDEVI M. Vs. PADMAKUMAR

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S No.292 of 2017 on the files of the Principal Munsiff's Court, Kottayam. The suit is filed for permanent prohibitory injunction restraining the defendants from causing damage to the compound wall of the plaint scheduled property and from trespassing and committing acts of waste and mischief in the property. The plaintiff and the defendants are close relatives and are in ownership and possession of adjacent properties. The dispute is pertaining to the compound wall situated at the southern boundary of the plaint scheduled property. According to the plaintiff, the compound wall is situated within the plaint scheduled property. The defendants on the other hand has disputed the plaintiff's title and possession over the plaint scheduled property in their written statement and has raised a counterclaim. In the suit, Ext.P3 interim order of injunction was passed on 10.04.2017. The plaintiff alleges that in spite of the injunction order, the second defendant damaged a portion of the compound wall. Raising the said allegation, the petitioner filed an application under Order XXVI Rule 9 for appointing an Advocate Commissioner to ascertain the damage caused. That application was allowed and the Advocate Commissioner filed Ext.P13 report. Thereupon, the petitioner filed Ext.P14 application under Order XXXIX Rule 2A for initiating action for violation of the injunction and Ext.P15, under Sections 94, 151 and Order XXXIX Rules 1 and 2, to restore the destroyed southern compound wall under the supervision of an Advocate commissioner and to restrain the defendants from interfering with or obstructing the restoration work.

(2.) As per the averments in the original petition, during the course of hearing of Ext.P15, the Counsel for the defendant endorsed 'No Objection' on Ext.P15 petition. Despite the 'No Objection', the learned Munsiff passed Ext.P16 order, holding that it will not be possible to pass an order on the petition without adducing evidence as to where exactly the compound wall is situated. Aggrieved, this original petition is filed.

(3.) Sri.Luke J.Chirayil, learned Counsel for the petitioner narrated the sequence of events and submitted that the damage caused to the compound wall during subsistence of the interim injunction order having been noted by the Advocate Commissioner and Counsel for the second respondent having endorsed 'No Objection' to Ext.P15, the learned Munsiff ought to have allowed the prayer for restoration. It is submitted that the petitioner had only sought permission for restoring on the damaged portion of the compound wall, which the Advocate Commissioner has taken note of, as evidenced by Ext.P13 report.