Kerala High Court
Alappuzha Municipality vs T.J. Paul on 14 January, 1994
Equivalent citations: AIR1995KER36, AIR 1995 KERALA 36, (1994) 1 KER LJ 352
ORDER L. Manoharan, J.
1. Respondent in C.M.A. 32 of 1991 of the District Court, Alappusha who was the counter petitioner in I.A. 1822 of 1991 in O.S. 418 of 1991 of the Munsiff's Court, Alappusha is the revision petitioner. Respondent instituted the said suit against the revision petitioner for a decree of permanent injunction restraining the revision petitioner from demolishing or destroying the plaint schedule building or from interfering with his peaceful use of the building. He moved LA. 1822 of 1991 for a temporary injunction. Learned Munsiff dismissed the petition. Against the said order respondent preferred C.M.A. 32 of 1991 before the District Court, the appeal was allowed. The judgment in the said C.M.A. is under challenge in this revision petition,
2. Respondent/plaintiff alleged that his father obtained a lease for the plaint schedule 4 cents for industrial purpose and constructed a shed wherein he started a business of Boat Engine repairing and maintenance in the year 1104. Later his father formed a partnership with the plaintiff and two of his (plaintiff) brothers. Father was the Managing Partner. On the death of his father on 1-5-1990 he became the Managing Partner of the firm. He is also the legal heir along with his two brothers. Plaintiff's father thus was the owner of the shed and after him, the plaintiff as heir and partner of the firm is in his possession and is conducting the workshop. He claimed that he is a tenant within the meaning of Section 106 of Act 1/1964 of the Kerala Land Reforms Act. The municipal assessment of the building stood in the name of the plaintiffs father. While so, one P.J. Thomas obtained a sale deed for the property on 9-4-1990. According to the respondent be in collusion with the revision petitioner when attempted to manipulate the municipal assessment register with a view to incorporate his name as the owner of the building, he (respondent) filed O.S. 747 of 1990 for permanent injunction and an interim injunction was ordered against the revision petitioner from transferring the ownership of the plaint schedule building and evicting him.
3. It is the case of the respondent that when the said suit was pending, at about 2 O' clock in the night of 25-5-1991 the said P.J. Thomas and his associates set fire to the plaint schedule shed with an object of forcibly evicting the plaintiff from the premises. He preferred a complaint before the police and filed a petition for prosecuting the defendants in O.S. 747 of 1990 for violating the interim injunction. According to the plaintiff the firm destroyed the thatched roof and enclosure, therefore he made necessary repairs to the shed. According to him the said Thomas a business tycoon in Alappuzha is highly influential both politically and financially.
4. It is alleged by the respondent that the revision petitioner on the influence of the said P.J. Thomas colluded with him and caused to issue a notice under Section 247 of the Kerala Municipalities Act, 1960 (Act 14 of 1961) (for short 'the Act') to show cause why the unauthorised construction should not be demolished. Along with the notice, a provisional order for demolition was served. According to the respondent, this attempt also was to get the respondent evicted from the premises. Respondent filed an objection to the said notice. According to the respondent on account of the political and monetary influence of the landlord, revision petitioner is taking hasty steps to demolish the structure and if the attempt of the revision petitioner succeeds, the respondent will be put to irreparable loss and injury.
5. Revision petitioner filed an objection to the said petition contending that the allegation against the collusion is not proved and that what the respondent has done is not repair, but was re-construction, and since the same was done without necessary permission under the Act, on satisfying that the said construction is unauthorised, revision petitioner issued the aforesaid notice. It was also contended that the respondent has got the remedy of appeal under Section 364 of the Act. In such circumstance, according to the revision petitioner the plaintiff has no prima facie case. It is maintained by the petitioner that the ingredients for the issue of temporary injunction being absent, the respondent is not entitled to an order of injunction.
6. Learned counsel for the revision petitioner contended that the very allegations in the plaint and also the affidavit filed by the plaintiff in O.S. 747 of 1990 would show that the revision petitioner has reconstructed the building without necessary permission. On the other hand, learned counsel for the respondent maintained that the respondent has done only repairs. He maintained that the case of the respondent that the revision petitioner acted in collusion with the defendant in O.S. 747 of 1990 has to be taken into account in deciding the prima facie case.
7. The thrust of the argument of the learned counsel for the revision petitioner is that inasmuch as the respondent in the plaint itself states that thatching of the roof, side covering with wooden planks and the machineries had been destroyed by the fire would show that what he has done is reconstruction within the meaning of Section 3(33) of the Act; and since the same was done without necessary permission under the Act, the construction was unauthorised, Therefore, the revision petitioner was within its right when the aforesaid notice was issued to the respondent to show cause why the building should not be demolished. According to the learned counsel the respondent has no prima facie case.
8. One important aspect to be noticed in this connection is the case of the respondent is the revision petitioner acted in collusion with the landlord of the property. In other words, according to the respondent it was a colourable exercise of power by the revision petitioner at the behest of the landlord. In deciding the prima facie case the said aspect would have decisive relevance if as a matter of fact, there is prima facie evidence in support of the said allegation of the respondent then that would be sufficient to establish a prima facie case. If as a matter of fact, the revision petitioner has acted as is alleged by the respondent, the revision petitioner will not be entitled to take shelter under Section 247 of the Act. This has also got relevance in considering as to whether the respondent has got an equally efficacious remedy under Section 364 of the Act by preferring an appeal.
9. Learned counsel for the revision petitioner relied on the decision in Delhi Municipality v. Suresh Chandra, AIR 1976 SC 2621, to contend that the principles in Section 41(h) of the Specific Relief Act has to be appleid in the case of proceeding under Order 39, Rule I, CPC also as the same has bearing in considering the prima facie case. As noticed, if the revision petitioner acted in collusion with the landlord as to infer mala fides, the remedy of appeal under Section 364 of the Act cannot be put against the respondent to contend that he has no prima facie case.
10. Thus it becomes necessary and important in the context to see as to whether the respondent is successful in establishing prima facie that the revision petitioner acted in collusion with the landlord.
11. In considering the said aspect, the institution of O.S. 747 of 1990 in which the revision petitioner is the 4th defendant has got relevance. It was during pendency of the said suit that the thatched shed of the respondent was set on fire. He alleged that he preferred a complaint before the police regarding the said mischief by the fire. Steps were taken by the revision petitioner to transfer the ownership of the shed in favour of the landlord on his obtaining an assignment of the original landlord's right, and as noticed an interim injunction was in force against such transfer of ownership. It was when the interim injunction was in force that the shed caught fire. The fact remains that the thatched shed in which respondent's father and after him the respondent was conducting the workshop was burned down. The said suit (O.S. 747 of 1990) later was decreed with costs. The mischief by fire necessitated the plaintiff to attend to the necessary works so that he could conduct the workshop in the same place. It was then that the revision petitioner issued notice to show cause as to why the construction should not be demolished. Again, it has to be noted that the respondent has a case that he is entitled to fixity under Section 106 of the Kerala Land Reforms Act. One of the ingredients therein is, the respondent should have constructed the structure; in other words he must be the owner of the structure. The attempt by the landlord to transfer the ownership in his favour in the Municipal record was foiled by the institution of O.S. 747 of 1990 and also the interim injunction. As noticed, later the suit itself was decreed. It was during the pendency of the said suit that the shed was set on fire in the cover of darkness. The said circumstances have inexorable connection with the case of the respondent that the revision petitioner issued the impugned notice at the behest of the landlord.
12. In the decision in Joshus v. Geevarghese Mar Dioscorus (1979-85) KUC 243) a Division Bench of this Court held that prima facie case would mean only that there should be a bona fide contention between the parties or a serious question to be tried, (--) there should be a "fair or arguable or debatable case". Another Division Bench of this Court in Muthukoya v. Muthukoya, (1988) 1 Ker LT 664, as regards prima facie case held that the Court should consider whether there is a bona fide contention between the parties or a serious question to be tried. With due regard to the said facts and circumstances, it is undoubtedly clear that there is a fair and debatable case for the revision petitioner to go for trial. Thus the contention of the learned counsel for the revision petitioner that the petitioner has no prima facie case cannot be accepted.
13. As regards the question of irreparable loss and inury, there can be no doubt that if the building is demolished before the adjudication in the suit, respondent will be put to irreparable loss and injury. The respondent has urged that there are seven workers working in the workshop along with him and that if the building is demolished, all of them would lose their means of livelihood. Then it has also to be found that the balance of convenience is in favour of the respondent for if the building is demolished during the pendency of the suit, the relief sought in the plaint itself would become infructuous. Thus, the argument advanced by the learned counsel for the revision petitioner is not acceptable and hence the C.R.P. is liable to be dismissed.
In the result the revision fails and the same is dismissed.