IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 15^TH DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 OP(C) NO. 323 OF 2023 AGAINST THE ORDER/JUDGMENT IN OS 342/2015 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM PETITIONER/S:

SURESH BABU V.K, AGED 53 YEARS S/O. LATE KRISHNAN KUTTY V.P., BUSINESS, VETTIYATIL HOUSE, FROM DOOR NO.4/279 MATTATHUR GRAMA PANCHAYATH P.O., MURIKKUNGAL, VELLIKULANGARA VILLAGE, MUKUNDAPURAM TALUK, TRISSUR , NOW RESIDING AT HOUSE NO.VI/290 MARADU MUNICIPALITY, KOPPANDISSERY ROAD, NEAR TURUTHY TEMPLE, MARADU P.O., PIN 682 304, PIN - 680699 BY ADVS.

M.P.RAMNATH BEPIN PAUL S.SANDHYA SHALU VARGHESE K.S AKSHAY MOHAN UMA R.KAMATH K.J.SEBASTIAN P.RAJESH (KOTTAKKAL)

M.VARGHESE VARGHESE S.DEEPAK ANTONY THARIAN RESPONDENT/S:

DR. SANTHOSH THOMAS, AGED 55 YEARS S/O. O.J.THOMAS, 31/1028M, OLASA DALE, FRIENDS AVENUE, VYTTILA, KOCHI, PIN - 682019 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Aggrieved by Ext.P8 order passed in IA No.6107/2018 and Ext.P11 order passed in RP No.36/2022 in OS No.342/2015 by the Court of the II^nd Additional Munsiff, Ernakulam, the defendant in the suit has filed the original petition. The respondent is the plaintiff.

2. The background facts, leading to the impugned orders, relevant for the determination of the original petition are:

(i) The respondent has instituted Ext.P1 plaint against the petitioner for a decree of prohibitory injunction. The suit is resisted by the petitioner through Ext.P2 written statement.

(ii) At the instance of the respondent, an Advocate Commissioner has filed Ext.P3 report on 28.05.2015. The petitioner has filed Ext.P4 objection to the report.

(iii) Long thereafter, on 05.09.2018 (that is almost three years and six months after the filing of Ext.P3 report), the respondent filed I.A.No.6107/2018 (Ext.P5) seeking leave to amend the plaint, to incorporate an additional relief for a decree of mandatory injunction to remove the structures seen in plaint 'B' schedule property. The application was opposed by the petitioner through Ext.P6 counter affidavit.

(iv) Without hearing both sides and overlooking the contentions in Ext.P6 counter affidavit, the court below allowed Ext.P5 application. Immediately, the petitioner filed IA No.1/2020, to review the order that was passed, which was allowed by Ext.P7 order.

(v) Yet, the court below, by the impugned Ext.P8 order, has allowed Ext.P5 application.

(vi) The petitioner filed RP No.36/2022 to review Ext.P8 order. The application was opposed by the respondent through Ext.P10 counter affidavit.

(vii) The court below, by the impugned Ext.P11 order has partly allowed Ext.P9 review petition.

(viii) Exts.P8 and P11 orders are manifestly wrong and erroneous. Hence, the original petition.

3. Heard; Sri.M.P.Ramnath, the learned Counsel appearing for the petitioner and Sri.A.T.Anilkumar, the learned Counsel appearing for the respondent.

4. The question is, whether there is any illegality in Exts.P8 and P11 orders.

5. Ext.P1 plaint was instituted on 06.03.2015 for a permanent prohibitory injunction, to restrain the petitioner and his men from trespassing into plaint 'A'

and 'B' schedule properties.

6. The respondent's case in Ext.P1 plaint is that he had purchased 250/10,000 undivided share in 8.253 cents of land in Poonithura Village with the apartment bearing No.29/1348-A1A of Kochi Corporation and a covered car parking by way of a registered sale deed No.2261/03 of the Maradu SRO. The building complex consists of a basement floor, ground floor and four other floors. The basement floor has seven car parking slots. As per respondent's knowledge, the petitioner has purchased six of the seven parking spaces. The petitioner is conducting two mobile phone shops on the ground floor and first floor of the building complex. The petitioner, with an intention to take over the building complex and its management, is indulging in foul play. On 03.03.2015,