IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 FAO.No. 308 of 2010() --------------------- AS.149/2009 of I ADDL. DISTRICT COURT, PALAKKAD OS.669/2007 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/2ND DEFENDANT ----------------------------------------------------- THE PALAKKAD MUNICIPALITYH,REP.BY ITS SECRETARY,MUNICIPAL OFFICE,PALAKKAD 678 001. BY ADV. SRI.T.C.SURESH MENON SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.C.A.ANOOP RESPONDENTS/RESPONDENTS.IST DEFENDANT & PLAINTIFFS -------------------------------------------------------------------------------------------- 1. INDIAN MEDICAL ASSOCIATION,PALAKKAD DISTRICT BRANCH,REPRESENTED BY ITS PRESIDENT DR.T.MURALIDHARAN,S/O.M.S.M.MENON,RESIDING AT 11/831,ROBINSON ROAD,KOPPAM AMSOM,PALAKKAD III VILLAGE,PALAKKAD TALUK,PIN 678 001. 2. SECRETARY,DR.SUJITH,S/O.SRI.JANARDHANAN RESIDING AT 'ANUGRAHAM',HUSSAIN COLONY,YAKKARA AMSOM,WEST FORT ROAD,PALAKKAD 678 001. 3. STATE OF KERALA ,REP.BY THE DISTRICT COLLECTOR, PALAKKAD 678 001. ADV. SRI.K.P.BALAGOPAL FOR R1-2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/11/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- F.A.O. No.308 of 2010 ------------------------------------- Dated this the 21st day of November 2011 Judgment This appeal is directed against the order dated 17.3.2010 in AS No.149/09, whereby the lower appellate court allowed the appeal and remanded the matter to the trial court for fresh consideration. 2. Shorn off unnecessary details, the appellant issued a notice to the first respondent herein for cutting an removing of trees standing in his property. The first respondent claimed absolute ownership over the suit property and also possession and enjoyment of the same. Before the trial court, the first defendant who is the State accepted the claim put forward by the plaintiff and the second defendant namely the Municipality though, was given several opportunities, did not choose to file any written statement. The result was that after considering the documents produced by the plaintiff, the court below found FAO 308/10 2 that the plaintiffs have established their right and granted an injunction as prayed for. The second defendant carried the matter in appeal as AS No.149/09 before the District Court, Palakkad. The lower appellate court felt that the Municipality ought to have been given a chance to agitate their grievances and thought it fit to allow the appeal and remand the matter to the trial court, imposing costs of Rs.4,000/- on the second defendant in the suit who was the appellant before the lower appellate court. It is against the said order that this appeal is filed. 3. Notice is seen issued on the following questions of law raised in this appeal : (i) Whether the lower appellate court was justified in law in passing a conditional order of remand when the suit itself is barred by limitation and also under the provisions of the Kerala Municipality Act ? (ii) Should not have the lower appellate court refrained from imposing costs on the second defendant which may eventually lead to audit objection and fastening liability on FAO 308/10 3 the personnel of the Municipality ? 4. The main grievance of the appellant, according to the learned counsel, for the appellant is regarding the imposition of costs. It was pointed out that there was some laches from the part of the second defendant, but that did not warrant imposition of such heavy costs. 5. The learned counsel for the respondents, on the other hand, pointed out that no purpose will be served by the remand order because the two notices namely Exts.A11 and A16 have become infructuous since those trees, which were the subject matter of the notices and the case, have been cut and removed with the permission of the court. The trial court has only granted an injunction against the Municipality from disturbing the possession of the plaintiff. The learned counsel also pointed out that the Municipality can have no grievance against the said order and they are at liberty to take such steps as are available to them under law and so, a remand is unnecessary. FAO 308/10 4 6. There seems to be some force in the submissions of the learned counsel for the respondents. Though, there may be some laches from the Municipality, the imposition of heavy costs was also not warranted. It is a public authority and public funds will have to be utilised for paying costs. Moreover, no useful purpose will be served by remanding the order because, as rightly pointed out by the learned counsel for the respondents, Exts.A11 and A16 which were the notices issued to the plaintiff and which were the subject matter of the suit have become infructuous because the trees in question have already been cut and removed with the permission of the court. Of course, it is true that the court below has granted injunction restraining the defendants from interfering with the possession of the plaintiff. The second defendant cannot have much grievance in that regard because, it is seen from the records that the plaintiffs have been in possession of the suit property for a long time and if the second defendant is really aggrieved by the act of assignment said FAO 308/10 5 to have been made, they are free to take such steps in accordance with law to vindicate their grievances. This appeal is accordingly allowed. The impugned order, directing payment of Rs.4,000/- as costs, is set aside and the decree of the trial court is restored subject to the condition that the second defendant will be at liberty to take such steps in accordance with law to vindicate their grievances. No costs. P.Bhavadasan, Judge sta FAO 308/10 6