IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 CRP.No.789 of 2008 (D) ----------------------------- OS.312/2006 of MUNSIFF COURT, CHALAKUDY .................... REVN. PETITIONER: PLAINTIFF ------------------------------------ SREE NARAYANA DHARMA PARIPALANA YOGAM, ANNANADU BRANCH, REPRESENTED BY ITS PRESENT SECRETARY T.D. VENU. BY ADV. SRI.SARVOTHAMAN RESPONDENT: DEFENDANT -------------------------------- SREE NARAYANA SAMAJAM, ANNANADU, REPRESENTED BY SECRETARY, BHASKARAN, AGED 40, S/O.OLLURKARAN KARAPPAN, KALLUR VADAKKUMURY VILLAGE, MUKUNDAPURAM TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. R. P. No.789 of 2008 ------------------------------------------------ Dated this the 19th day of November, 2008 ORDER The plaintiff in O.S.312/06 on the file of the Munsiff's Court, Chalakudy has preferred this C.R.P against dismissal of the suit. According to the learned counsel, revision is maintainable before this Court as the suit O.S.312/06 was one under Section 6 of the Specific Relief Act for recovery of possession of property basing on prior possession alleging dispossession otherwise than under due process of law. The facts relevant for consideration of the matter are the following:- The petitioner Sree Narayana Dharma Paripalana Yogam, Annanadu Branch instituted O.S.26/06 against the respondent/Sree Narayana Samajam, Annanadu for a decree of permanent prohibitory injunction restraining them from C. R. P. No.789 of 2008 -2- trespassing into the portion of the scheduled building in their occupation on the allegation that the Yogam and the Samajam were in occupation of portions of the same building. The said suit was filed on 11/01/06. On the same day a commission was issued and on the Commissioner inspecting the property, certain furniture belonging to the plaintiff/Yogam was found outside the building which had been found locked. The Commissioner reported that fact. Without waiting for an adjudication in that suit the plaintiff/Yogam withdrew the said suit allegedly with leave to institute a fresh suit which order is, however, not produced before this court or before the trial court. Incidentally, therefore, I am constrained to observe that it is doubtful whether any leave has been obtained to institute a fresh suit. However, O.S.312/06 was instituted for a decree directing the C. R. P. No.789 of 2008 -3- respondent/defendant to return to the plaintiff the scheduled rooms which the defendant has taken possession of from the possession of the plaintiff. The suit is instituted under order VII Rule 1 without making mention of Section 6 of the Specific Relief Act. If a suit is to be maintained under Section 6 of the Specific Relief Act, it must be for recovery of possession of immovable property from which the plaintiff has been dispossessed without his consent and otherwise than in due course of law. In the instant case, the prayer is not for recovery of possession, but for a direction to the respondent/defendant to hand over possession. The suit, no doubt, falls under Section 9 of the Civil Procedure Code, but not under Section 6 of the Specific Relief Act. Further, as observed by the court below prior possession also is not established and the C. R. P. No.789 of 2008 -4- fact that O.S.26/06 has been filed for prohibitory injunction restraining the defendants from trespassing into the scheduled portion of the building does not mean that plaintiff was in possession. It shows only that the allegation of the plaintiff was that he is in possession. Thus, the plaintiff having not shown to be in possession within six months immediately prior to the institution of the suit O.S.312/06 on 04/07/06 and the frame of the suit being not for recovery of possession consequent on dispossession and the petitioner/plaintiff having not established his case, the court below has dismissed the suit. The remedy, in the circumstances for the petitioner is to prefer an appeal against the decree and judgment and no revision is maintainable as the suit is not one under Section 6 of the Specific Relief Act. This revision is hence, C. R. P. No.789 of 2008 -5- not maintainable and is dismissed without prejudice to the petitioner filing appeal against the decree assailed in which case the time between 16/06/08, the date of filing of this C.R.P and the date of disposal of the C.R.P shall stand excluded and will not be counted for the purpose of limitation. The Registry shall forthwith return the attested copy of judgment and decree in O.S.312/06 produced for the purpose of filing this revision. K.P.BALACHANDRAN, JUDGE kns/-