Kerala High Court
P.V.Karunakaran vs Kakkottakath Valappile Purayil ... on 4 October, 2012
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 22ND DAY OF JANUARY 2013/2ND MAGHA 1934
OP(C).No. 4390 of 2012 (O)
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AGAINST THE ORDER IN CMA.31/2011 of SUB COURT, PAYYANNUR
DATED 04-10-2012
AGAINST THE ORDER IN OS.21/2011 of MUNSIFF COURT, THALIPARAMBA
DATED 20-09-2011
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PETITIONERS/RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. P.V.KARUNAKARAN, AGED 55 YEARS
S/O LAKSHMI AMMA,NEAR CLASSIC TALKIES
TALIPARAMBA AMSOM,TRICHAMBARAM DESOM,
TALIPARAMBA P.O,KANNUR DISTRICT
2. SAROJINI, AGED 50 YEARS,
W/O P.V. KARUNAKARAN,NEAR CLASSIC TALKIES
TALIPARAMBA AMSOM,TRICHAMBARAM DESOM
TALIPARAMBA. P.O,KANNUR DISTRICT
BY ADVS.SRI.V.A.SATHEESH
SRI.V.T.MADHAVANUNNI
SRI.J.ABHILASH
SRI.P.P.SURESHKUMAR (AMBADIYIL)
RESPONDENT/APPELLANT/ PETITIONER/ PLAINTIFF:
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KAKKOTTAKATH VALAPPILE PURAYIL KUNHAMINA, AGED 65 YEARS,
W/O MUHAMMED HAJI @ MAMMU HAJI
TALIPARAMBA AMSOM DESOM,TALIPARAMBA,P.O
KANNUR DISTRICT 670141
BY ADV. SRI.R.SURENDRAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22-01-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
OP(C).No. 4390 of 2012 (O)
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APPENDIX
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PETITIONER(S) EXHIBITS
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EXT. P1 TRUE COPY OF THE PLAINT IN O.S NO 21/2011 OF MUNSIFF COURT
TALIPARAMBA
EXT. P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS
IN O.S NO 21/2011 OF THE MUNISFF COURT, TALIPARAMBA
EXT. P3 TRUE COPY OF THE ASSIGNMENT DEED ISSUED BY THE DISTRICT
COLLECTOR, KANNUR TO THE PETITIONERS DATED 19-10-2001
EXT. P4 TRUE COPY OF THE REPORT OF THE COMMISSIONER IN I.S NO
21/2011 OF THE MUNSIFF COURT, TALIPARAMBA
EXT. P5 TRUE COPY OF THE ORDER IN I.A NO 135/2011 IN O.S NO 21/2011
OF THE MUNSIFF COURT, TALIPARAMBA DATED 20-09-2011
EXT. P6 COPY OF THE JUDGMENT IN CMA NO.31/2011 OF SUB COURT,
PAYYANNUR DATED 4.10.2012
EXT.P7. COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER IN O.S.
NO.21/2011 OF MUNSIFF COURT, TALIPARAMBA DATED 12.12.2012.
RESPONDENTS' EXHIBITS : NIL
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/ TRUE COPY /
P.A. TO JUDGE
VK
THOMAS P. JOSEPH, J.
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Original Petition (civil) No.4390 of 2012
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Dated this the 22nd day of January, 2013
JUDGMENT
This original petition is in challenge of judgment dated 04.10.2012 in CMA No. 31 of 2011 of the Sub Court, Payyannur reversing the order passed by the learned Munsiff, Taliparamba on I.A. No. 135 of 2011 in O.S. No. 21 of 2011.
2. O.S No. 21 of 2011 is a suit filed by the respondent/plaintiff for a decree for prohibitory injunction to restrain petitioners from trespassing into the plaint A schedule which is described as 1.30 acres within the boundaries referred to in the plaint schedule. It is the case of respondent/plaintiff that plaint B schedule (15 cents) forms part of plaint A schedule. As on the date of suit there was only a basement constructed in plaint B schedule. Respondent filed I.A No. 135 of 2011 for an order of temporary injunction in the above lines. The petitioners resisted that application contending that plaint B schedule belongs to them as per Ext.P3, assignment order issued by the State Government and that they are in possession of plaint B schedule since 2001.
O.P.(C) No. 4390 of 2012 -: 2 :-
3. The trial court found a prima facie case in favour of the respondent but took the view that construction of building in plaint B schedule which was in progress, if stopped would cause inconvenience to the petitioner and consequently dismissed I.A. No. 135 of 2011.
4. Respondent challenged that order in CMA No. 31 of 2011. Learned Sub Judge found that prima facie case is in favour of the respondent, if injunction is not granted it will cause irreparable injury to the respondent and that balance of convenience is also in favour of the respondent. Consequently, the CM appeal was allowed and an order of temporary injunction was granted on I.A. No. 135 of 2011. Hence the challenge to the judgment in CMA No. 31 of 2011.
5. Learned counsel for petitioners has invited my attention to Ext.P3, assignment order and Ext.P7, report of the Advocate Commissioner which is last on point of time. It is submitted that construction of the building in plaint B schedule has progressed much and if at this stage petitioners are prevented from completing construction, they will put to irreparable loss and injury since by the time the suit is finally disposed of, cost of construction will shoot up due to escalation of price of building materials and labour charges. Learned counsel for respondent O.P.(C) No. 4390 of 2012 -: 3 :- submitted that as on the date of the suit there was only a basement in plaint B schedule and that further construction was made only after institution of the suit. Respondent also has a grievance that the Advocate Commissioner delayed submission of the report by about a week to facilitate petitioners complete construction of the building.
6. I must notice that even as on the date of the suit there was some structure in plaint B schedule. Various reports show that construction of building in plaint B schedule has progressed. It may take a long time to finally decide the dispute. By that time the cost of construction will go up. In such a situation, I am inclined to think that petitioners could be permitted to complete construction of the building but subject to conditions. However, there is no reason to interfere with the order of injunction passed on I.A. No. 135 of 2011 concerning the rest of plaint A schedule (i.e. excluding plaint B schedule).
Resultantly, this original petition is allowed in part as under:
1) Judgment in CMA No. 31 of 2011 of the Sub Court, Payyannur is set aside in part and the order on I.A. No. 135 of 2011 in O.S No. 21 of 2011 of the Munsiff's Court, Taliparamba is O.P.(C) No. 4390 of 2012 -: 4 :- modified as under:-
(a) While retaining the order of injunction as regards plaint A schedule (excluding plaint B schedule) petitioners are permitted to complete construction in plaint B schedule subject to the following conditions:-
(i) That such construction shall be in accordance with the rules, regulations or other notifications in force and binding such a construction.
(ii) That by such construction,petitioners shall not acquire any right over the structure or make any claim either in the form of equity or otherwise over the said structure
(iii) In case the suit is decided in favour of the respondent/plaintiff, petitioners shall, at their expense and without putting forth any claim or objection remove the structure in plaint B schedule within the time provided by the trial court.
Sd/-
THOMAS P.JOSEPH,
JUDGE
smv //True copy//
P.A. To Judge