JUDGMENT

Dated this the 24th day of March 2021 The issue relates to plaint 'C' schedule pathway which was closed. The plaintiffs in O.S.No.4616/2015 on the files of the II Additional Munsiff Court, Thrissur, filed the suit which was dismissed.

2. The challenge of the judgment and decree in A.S.No.105/2020 resulted in remand of the whole matter to the court below. In the course of A.S.No.105/2020, plaintiffs filed I.A.No.3/2020 for an order of temporary mandatory injunction.

3. The appellate court while disposing of the appeal and passing an order of remand dated 22.12.2020 did not consider the said application on merits. It was closed without application mind. Being aggrieved by the order dated 22.12.2020 passed in I.A.3/2020, the first plaintiff in the suit came up with this original petition under Article 227 of the Constitution of India.

4. I heard the learned counsel appearing on either side.

5. In my view, the appellate court should have taken up I.A.No.3/2020 and passed orders on merit. The impugned order passed cannot be said to be sound in law. Nevertheless, paragraph No. 42 of the appellate judgment dated 22.12.2020 indicates that the grievance of the plaintiffs in the suit was taken care of. The appellate court directed the trial court to take care of the grievance of the plaintiffs and dispose of the suit itself in the light of the observations contained in the judgment in A.S.No.105/2020.

6. The learned counsel for the petitioner submits that despite an order of remand in appeal, the plaintiffs in the suits are not in a position to make use of the disputed way since it stands blocked.

7. According to him, orders are to be passed at an early date in accordance with law and the rights of the plaintiffs protected. The learned counsel for the respondents point out that the trial court had on former occasion heard parties as to the need for preserving subject matter of the suit and interlocutory orders were passed which were challenged in appeal and none of the courts chose to remove the alleged obstruction caused to the disputed way.

8. After hearing submissions made on behalf of either parties, I am of the opinion that, in view of the order of remand passed in A.S.No.105/2020, of the trial court has to decide the issue over again. While complying the directions given in the remand order passed in A.S.No.105/2020, the trial court will be at liberty to pass necessary orders, if the plaintiffs in the suit make a request for issue of mandatory injunction,in accordance with law.

In the result, this O.P. is disposed of permitting the petitioner to submit before the trial court an application for issue of temporary injunction in same terms of I.A.No.3/2020 filed in A.S.No.105/2020 and if such an application is filed, the court below shall pass appropriate orders in accordance with law after hearing parties. It is made clear that this Court has not expressed any view on merits of the respective cases put forth by the parties. It is directed that the trial court may not delay decision on the application, if any, filed before it.

Sd/-

T.V.ANILKUMAR JUDGE SMF APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O S NO 4616 OF 2015 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFF COURT, THRISSUR DATED 26.6.2015 EXHIBIT P2 A TRUE COPY OF THE COMMISSIONER'S REPORT AND PLAN IN I.A.NO.13193 OF 2015 IN EXT. P1 SUIT DATED 1.7.2015 EXHIBIT P3 A TRUE COPY OF THE COMMON ORDER PASSED IN I.A.NOS.13195 AND 13196 OF 2015 IN EXT. P1 SUIT DATED 21.8.2015 EXHIBIT P4 A TRUE COPY OF THE COMMON JUDGMENT IN C M A NO'S 113 AND 114 OF 2015 ON THE FILE OF THE DISTRICT COURT, THRISSUR DATED

21.3.2016 EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DELIVERED IN A S NO.105 OF 2020 DATED 22.12.2020 ON THE FILE OF THE 3RD ADDITIONAL DISTRICT COURT, THRISSUR EXHIBIT P6 A TRUE COPY OF THE PHOTOGRAPHS DATED NIL TAKEN BY THE PETITIONER.

EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE LOWER APPELLATE COURT, 3RD ADDITIONAL DISTRICT COURT, THRISSUR IN I.A.NO.3 OF 2020 IN A.S.NO.