S. CHITRA Vs. JOSE ANTONY

JUDGEMENT

(1.) These two Regular Second Appeals arise from two suits - O.S.No.63/2007 and O.S.No.69/2007 in which the subject matter is one and the same. The plaintiff in O.S.No.63/2007 and the defendants in O.S.No.69/2007 are the appellants.

(2.) O.S.No.63/2007 was filed by the plaintiff for permanent prohibitory injunction against the defendant therein from causing any obstruction in the user of Plaint B Schedule property as way. The defendant in O.S.No.63/2007 filed O.S.No.69/2007 against the plaintiff in O.S.No.63/2007 and four others for permanent prohibitory injunction, mandatory injunction, and damages on the allegations that the defendants widened the 4 feet gap to the Plaint D schedule property for passing through B and C schedules to the tarred road and they are liable to restore the gap to a width of 4 feet, not to trespass into Plaint A schedule property, not to commit waste or damage in the plaint schedule properties and to pay damages of Rs.5,000.00. The issue in both suits is regarding the width of the gap and pathway. According to the plaintiff in O.S.No.63/2007, the gap is 4 feet, and according to the plaintiff in O.S.No.69/2007, the gap is 2.25 meters. Plaint B schedule in O.S.No.63/2007 is the Plaint D schedule in O.S.No.69/2007. The defendants appeared in the respective suits and filed Written Statements.

(3.) Both the suits were ordered to be jointly tried, treating O.S.No.63/2007 as the leading case. Both the suits were listed for trial on 1/2/2008. On that day, the plaintiff in O.S.No.63/2007 and the defendants in O.S.No.69/2007 were absent. The Trial Court appointed an Advocate Commissioner to record evidence of both sides with direction to complete the same on or before 8/2/2008. The plaintiff in O.S.No.63/2007 and the defendants in O.S.No.69/2007 did not cooperate to take evidence, and when the suits were taken on 8/2/2008, they were absent. Consequently, O.S.No.63/2007 was dismissed for default and O.S.No.69/2007 was decreed as prayed for, without setting the defendants exparte, but without adjudicating the matter on merits.