IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 14395 of 2008(L) --------------------------------------- (C.M.A. NO. 37/2008 OF THE DISTRICT COURT, ERNAKULAM) ....................... PETITIONER: ------------------- M.A.THOMAS, S/O.M.T.ALEXANDER, MARINE ENGINEER,ODAMPADU HOUSE, SHANKARAMANGALAM, KUZHIVELIPPURAM, KARACKAL, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.T.KRISHNANUNNI (SR.). ADV. SRI. S.A. SAIJU, ADV. SRI. P.I. GEORGEKUTTY. RESPONDENTS: ------------------------ 1. M/S. ULTIMA BUILDERS AND DEVELOPEERS PVT.LTD., REPRESENTED BY ITS CHIEF EXECUTIVE AND MANAGING DIRECTOR, OPP.GANGOTHRI HALL, RAJAJI ROAD, KOCHI-35. 2. MR.SANTHOSH, MANAGING DIRECTOR, M/S. ULTIMA BUILDERS AND DEVELOPEERS PVT LTD, OPP.GANGOTHRI HALL, RAJAJI ROAD, KOCHI-35. R1 & R2 BY ADV. SRI.P.S.BIJU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14395/2008-L: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 1343/2007, MUNSIFF COURT, ERNAKULAM, DTD. 27/11/2007. EXT.P.2: COPY OF THE AFFIDAVIT IN SUPPORT OF I.A. 9756/2007 IN O.S. NO. 1343/2007, MUNSIFF COURT, ERNAKULAM DTD. 27/11/2007. EXT.P.3: COPY OF THE COUTNER AFFIDAVIT FILED BY THE DEFENDANTS 1 AND 2 IN I.A. NO. 9756/2007 IN O.S. NO. 1343/07, MUNSIFF COURT, ERNAKULAM DTD. 07/12/2007. EXT.P.4: COPY OF THE REPORT AND SKETCH SUBMITTED BY THE COMMISSIONER IN O.S. NO. 1343/2007, MUNSIFF COURT, ERNAKULAM DTD. 05/12/2007. EXT.P.5: COPY OF THE SKETCH AND THE REPORT SUBMITTED BY THE TECHNICAL EXPERT DTD. 08/02/2008. EXT.P.6: COPY OF THE ORDER IN I.A. NO. 9756/2007 IN O.S. NO. 1343/2007, MUNSIFF COURT, ERNAKULAM DTD. 25/02/08. EXT.P.7: COPY OF THE ORDER IN C.M.A. NO. 37/2008, COURT OF THE DISTRICT JUDGE, ERNAKULAM DTD. 11/04/2008. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.14395 OF 2008 =========================== Dated this the 27th day of May, 2008 JUDGMENT Petitioner is the plaintiff in O.S.1343/2007 on the file of Additional Munsiff Court, Ernakulam. He filed the suit seeking a decree for injunction restraining respondents/defendants from constructing a building in the plaint schedule property without obtaining sanction and licence from the Panchayat. Petitioner filed I.A.9756/2007 an application under Order XXXIX Rule 1 of Code of Civil Procedure for an order of temporary injunction till the disposal of the suit. Under Ext.P6 order, learned Munsiff granted an order of temporary injunction finding that on 6.6.2007 respondents did not start the construction work and from 6.6.2007 Building Rules are made applicable to the Panchayat and therefore respondents are not entitled to construct the building till the disposal of the suit without obtaining sanction. W.P.(C)14395/08 2 Respondents challenged that order before the District Court, Ernakulam in C.M.A.37/2008. Under Ext.P7 order learned District Judge reversed Ext.P6 order and dismissed I.A.9756/2007. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner and respondents were heard. 3. The argument of the learned senior counsel is that eventhough in Ext.P6 order trial court found that allegation in the plaint that respondents started the construction work only on 21.10.2007 was not denied in Ext.P3 counter affidavit filed by respondents and there is no case for the respondents that construction work was started before 6.6.2007 and the District Judge did not consider this aspect and proceeded with the appeal as if Ext.B1 is a sanction obtained by respondents under Kerala Building Rules. It was pointed out that as per Ext.P5 report submitted by the expert after inspection on 18.1.2008 construction work in the plaint B schedule property W.P.(C)14395/08 3 could have been completed within a period of 5 to 6 months and if so the construction work could not have been started before 6.6.07. It was also pointed out that Ext.B1 assignment deed in favour of respondents was executed only on 14.5.2007 and the trial court rightly found that Kerala Building Rules are applicable as on 6.6.07 and first appellate court was not justified in setting aside Ext.P6 order. Learned counsel appearing for respondents submitted that first appellate court found that petitioner did not specifically plead violation of any particular Building Rules and in such circumstance considering the fact that respondents have invested crores for the construction work, appellate court set aside Ext.P6 order and invoking the powers of this court under Article 227, the order may not be interfered. Learned counsel also submitted that if it is to be found that question whether Kerala Building Rules are applicable as the construction work started before or after 6.6.07 learned District Judge may be directed to dispose the appeal afresh. W.P.(C)14395/08 4 4. It cannot be disputed that Kerala Building Rules are made applicable to Thrikkakkara Panchayat as on 6.6.07. The allegation in the plaint was that respondents started the construction work on 21.10.2007. If that is correct, as the construction started only subsequent to 6.6.07 Kerala Building Rules are applicable and respondents are not entitled to construct the building without obtaining sanction and licence as provided under Kerala Building Rules. 5. The crucial question therefore is whether the construction work was started by respondents before or after 6.6.07 and if so whether the Building Rules are applicable or not. Eventhough this aspect was considered by the learned Munsiff in Ext.P6 unfortunately learned District Judge did not consider it in the appeal. The question to be decided by the learned District Judge is whether Kerala Building Rules are applicable to the construction being proceeded with by the respondents in the plaint B schedule property. As this aspect was not considered and Ext.P6 order was W.P.(C)14395/08 5 quashed, Ext.P7 order is not sustainable. 6. Ext.P7 order in CMA 37/08 is quashed. The learned District Judge to dispose CMA 37/08 afresh after hearing the parties. Learned District Judge has to consider and decide whether Kerala Building Rules are applicable to the construction being proceeded with, by respondents in the plaint B schedule property. The answer depends on the question whether construction work was started before 6.6.07 or after that date. Writ Petition is allowed. Ext.P7 order is set aside. CMA 37/07 is restored to file. Learned District Judge is directed to dispose of CMA within thirty days from the date of appearance of the parties. Parties are directed to appear before the District Court, Ernakulam on 5.6.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006