OP(C) NO. 2908 OF 2024 1 2025:KER:28105 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 1ST DAY OF APRIL 2025 / 11TH CHAITHRA, 1947 OP(C) NO. 2908 OF 2024 AGAINST THE ORDER/JUDGMENT DATED 01.10.2024 IN CMA NO.11 OF 2024 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT, KANNUR ARISING OUT OF THE ORDER/JUDGMENT DATED 05.06.2024 IN OS NO.215 OF 2022 OF PRINCIPAL MUNSIFF COURT, KANNUR PETITIONER: RASHEEDA MANSOOR AGED 43 YEARS W/O MUHAAMMAD, MUKKANNAN HOUSE, KOLLARATHIKKAL, PO. CHIRAKKAL, KANNUR, PIN - 670011 BY ADVS. MOHAMMED NIHAD NITHEESH.M SIMRAN RESPONDENTS: 1 KOTTAYI GIRIJA AGED 72 YEARS D/O LATE KAKKOTH KUNJAMBU, DEEPAM, CHIRAKKAL AMSOM, PUZHATHI DESOM, KANNUR, PIN - 670011 2 PANNENTAKATH MUHAMMAD SHAJA AGED 46 YEARS S/O HUSSAN, PANNENTAKATH HOUSE, PAPPINISSERI, PO. PAPPINISSERI, KANNUR, PIN - 670561 BY ADV A.G.VISWAMBHARAN ARAKKAL GOPALAN OP(C) NO. 2908 OF 2024 2 2025:KER:28105 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 2908 OF 2024 3 2025:KER:28105 JUDGMENT (Dated this the 1st day of April, 2025) The petitioner is the 2nd respondent, and the respondent No.1 is the petitioner in IA No.2 of 2024 in CMA No.11 of 2024. The suit was filed for a permanent prohibitory injunction. Along with the suit, I.A.No.2 of 2022 was filed for a temporary injunction, which was allowed ex parte. Thereafter, the same was dismissed as per Ext.P5. 2. Subsequently, the respondent filed CMA No.11 of 2024 before the Sub Court, Kannur, and an application was filed as IA No.2 of 2024 for temporary injunction. The lower appellate court heard the I.A and passed an order as Ext.P7 restraining the petitioner herein and others from using heavy vehicles like tippers and lorries through plaint B schedule, so as to make the B schedule way unusable and muddy, till the disposal of the CMA. The petitioner has approached this Court, aggrieved by Ext.P7. 3. Notice from this Court has been served on the respondents and the respondents have filed a counter affidavit to this original petition. 4. Having gone through Ext.P5 and P7 orders, since the OP(C) NO. 2908 OF 2024 4 2025:KER:28105 lower Courts have exercised their discretion, in passing Ext.P7, this Court under article 227 of the Constitution of India would not be justified in substituting its view with the discretion exercised by the lower appellate Court. Therefore, for the ends of justice, I deem it appropriate to direct the Sub Court, Kannur, to take up CMA No.11 of 2024 itself and dispose of the same, within a period of three months from the date reopening of the Court after summer vacation. Sd/- BASANT BALAJI, JUDGE saap OP(C) NO. 2908 OF 2024 5 2025:KER:28105 APPENDIX OF OP(C) 2908/2024 PETITIONER EXHIBITS Exhibit P1 A COPY OF PLAINT IN OS NO. 215 OF 2022 FILED BY RESPONDENT NO.1 HEREIN Exhibit P2 A COPY OF WRITTEN STATEMENT FOR OS NO. 215 OF 2022 FILED BY PETITIONER HEREIN Exhibit P3 A COPY OF AFFIDAVIT AND PETITION FILED BY RESPONDENT NO.1 HEREIN ON IA 2/2022 IN OS NO. 215/ 2022 FOR TEMPORARY INJUNCTION Exhibit P4 COPY OF COUNTER STATEMENT FILED BY PETITIONER HEREIN FOR IA NO. 2/ 2022 IN OS NO. 215/ 2022 Exhibit P5 A COPY OF ORDER OF IA 2 OF 2022 IN O.S 215 OF 2022 BEFORE THE MUNSIFF COURT, KANNUR DATED 05.06.2024 Exhibit P6 A COPY OF AFFIDAVIT AND PETITION FILED BY RESPONDENT NO.1 HEREIN OF IA NO.2/ 2024 IN CMA NO. 11/ 2024 Exhibit P7 A COPY ORDER OF IA 2/ 2024 IN CMA NO. 11/ 2024 BEFORE THE HON’BLE COURT OF THE SUBORDINATE JUDGE, KANNUR DATED 01.10.2024 Exhibit P8 TRUE COPY OF COMMISSION REPORT ALONG WITH SKETCH PLAN //True copy//PA to Judge