Research › Search › Judgment

Kerala High Court · body

2012 DIGILAW 312 (KER)

T. J. Abraham v. Aleyamma Joy

2012-03-15

S.S.SATHEESACHANDRAN

body2012
Judgment : 1. The original petition has been filed seeking the following reliefs: i) to call for the records relating to Ext.P1 and direct the court below to comply with the orders of this Court in C.R.P.No.264/2006 dated 36.2010 and set apart a pathway over the property of the respondent, and in order to implement the same, direct the measurement of the properties of the parties within such time frame as this Hon'ble Court may direct. ii. or in the alternative allow the petitioners to cross over the property through the pathway already existing and used by the property for long as is found in Ext.P2 plan. iii. to grant such other and further reliefs in the interest of justice. 2. Petitioners are the plaintiffs in O.S.No.191 of 1991 on the file of the Munsiff's Court, Thiruvalla. That suit is one for declaration of the plaintiffs' right of easement over the properties of the defendant. Suit was decreed ex parte on 17.06.1993. Long after the passing of the ex parte decree, and after the death of the defendant against whom such decree was passed, his legal heirs applied for setting aside the decree moving such application with another for condoning the delay. The trial court dismissed both the applications. But in appeals, separately filed against the orders in the two applications, condoning the delay the ex parte decree was set aside directing trial afresh. After setting aside of such ex parte decree, the above case awaits fresh trial and disposal. During the pendency of the proceedings arising from the application moved for setting aside the ex parte decree, a plan was prepared showing properties of the plaintiffs and defendant and the nearby road. Ext.P2 is a copy of that plan. Plaintiffs had filed two revisions against the decisions of the appellate court allowing the application for setting aside the ex parte decree and condoning the delay, and in one of such revisions, the plan referred to above was also produced. Ext.P2 is a copy of that plan. Plaintiffs had filed two revisions against the decisions of the appellate court allowing the application for setting aside the ex parte decree and condoning the delay, and in one of such revisions, the plan referred to above was also produced. On the submissions made by the counsel for the plaintiffs that there is no other way for the plaintiffs to reach their property and also the concession made by the counsel for the respondent (defendant) that for the time being and until disposal of the suit, access could be provided to the property of plaintiff along the northern extremity of the green shaded portion shown in the sketch appended to a revision this Court disposed the revisions affirming the judgment setting aside the ex parte decree and ordering fresh trial, with the following directions: "It is directed that respondent shall provide, until disposal of the suit, a way having a width of three feet starting from the concrete road on the east, going towards west along northern extremity of the green shaded portion in the sketch referred above and reaching property of petitioners. Respondent shall set out the said way within two weeks from this day failing which it will be open to the petitioners to get it done through the trial court of course subject to the result of the suit and without prejudice to the contentions of the parties hereto." The directions as above provided as an interim measure for access to the property of the plaintiffs from the road, have not been complied with so far; the fault of which both parties attribute against the other. The plaintiffs have moved an application for a survey measurement of the property of the defendant to set out the pathway, which was objected to by the defendant. The learned Munsiff on such application has passed Ext.P1 order, and the challenge in the original petition is imputed against that order invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. At the time of hearing, it is fairly conceded by the learned counsel for the plaintiffs that Ext.P2 plan, which has been based to issue the interim directions has some mistakes. 3. At the time of hearing, it is fairly conceded by the learned counsel for the plaintiffs that Ext.P2 plan, which has been based to issue the interim directions has some mistakes. What are such mistakes is not germane for consideration at this stage as it has not been stated specifically in the original petition to consider whether implementation of the interim directions given in the revisions as aforesaid could be given effect to despite such mistakes in the plan. What is under challenge is Ext.P1 order passed on an application moved by the plaintiffs for survey measurement of the property of the defendant to carve out the pathway through that property and thus give effect to the directions in the orders passed in the revisions as aforesaid. That application was objected to by the defendant. Ext.P1 order passed by the learned Munsiff on the aforesaid application of the plaintiffs reads thus: "Both sides represented. The defendants have objection in surveying the property. So obtain further orders from the Honourable High Court in this regard. Call on 21.12.2011." To say the least, the direction issued by the learned Munsiff to seek further orders from the High Court was not only inappropriate and more so, not within her competence. A subordinate court called upon to implement the orders/directions of the superior court cannot direct the party to the suit or proceedings to go and get further orders from such superior forum, and it has to implement the order as it is, and, if for any reason the order is not implementable it has to spell out the reasons why it cannot be implemented. At any rate, the subordinate court cannot issue direction as has been passed by the learned Munsiff in the present case. Judicial discipline through the hierarchy under which it functions has to be respected at every level and the subordinate court is bound to implement the orders of the superior court respecting the inviolability of such orders so far as that court and the parties concerned in the lis. Subordinate court has to discharge its judicial function within the bounds of its authority and it cannot direct the parties to go and get orders of the superior court for implementing the orders of such court. Subordinate court has to discharge its judicial function within the bounds of its authority and it cannot direct the parties to go and get orders of the superior court for implementing the orders of such court. As already indicated, for any reason, the order is found incapable of being implemented, orders have to be passed by the court stating the reasons thereof, and the correctness of such orders can be challenged by the parties as provided by law. 4. What is discernible from the facts presented in the case, on the submissions made by the counsel on both sides, is that in view of the mistakes in Ext.P2 plan, there is some difficulty in implementing the interim measure ordered in the revisions to provide access to the petitioners' property through the property of the defendant from the road. A suit filed in 1991, in which, an ex parte decree was previously passed, after setting aside of such decree ordering fresh trial and disposal, is boggled down over disputes in the implementation of the interim directions issued as a temporary measure till disposal of the suit. Needless to point out, whatever be the entitlement of the plaintiffs to get such interim orders implemented, essentially, their legal rights thereof rests on the right of prescriptive easement of way claimed through the property of the defendants. When such be the case, it is all the most necessary that the trial of the suit has to be expeditiously conducted collecting the materials required thereof, if sought for, by deputing an advocate commissioner identifying the properties and also the way alleged, over which the right of prescriptive easement is claimed. In doing so, plaintiffs can also seek appropriate directions/orders for carving out a pathway in tune with the directions given under the orders passed in the revisions; and, once the report of the commissioner with the plan comes before the court determining such questions as may be canvassed for including those relating to the interim measures till disposal of the suit, the court can pass appropriate directions, if so made out, to provide the plaintiffs a way temporarily through the property of the defendant till disposal of the suit. Without doing so, any further enquiry solely with respect to the interim measures in the present suit instituted two decades ago, cannot be permitted at all as it would only delay its trial and disposal. Without doing so, any further enquiry solely with respect to the interim measures in the present suit instituted two decades ago, cannot be permitted at all as it would only delay its trial and disposal. Where it is practically conceded that Ext.P2 plan, on which, the interim directions issued by the court is based, in view of the mistakes therein cannot be acted as such, preparation of further plan with reference to survey plan and documents may be essential even to implement the interim directions leave apart to adjudicate the disputes arising in the lis. As indicated earlier, preparation of a report and plan deputing a commissioner, if applied for by the plaintiffs, should address matters not only relating to the interim measures for access to their property from the road but whatever details to be gathered for adjudication of the disputes in the suit to substantiate their entitlement for the decree canvassed for. If any such application is moved by the plaintiffs, the learned Munsiff shall consider it on its merits having regard to the observations made above and pass appropriate orders as are necessary for a fair disposal of the suit in accordance with law. At any rate, the Munsiff shall give the suit top priority for hearing and every endeavour shall be made to dispose the suit within six months from the date of receipt/production of a copy of this judgment. Subject to the above directions, the original petition is disposed of a.