IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 37937 of 2007(N) -------------------------- CMA.56/2007 of DISTRICT COURT, THALASSERY OS.38/2006 of SUB COURT, PAYYANNUR .................... PETITIONER: ------------ MADAYI THIRUVARKATTUKAVU DEVASWAM, REPRESENTED BY ITS EXECUTIVE OFFICER, CHIRAKKAL KOVILAKAM, DEVASWAMS OFFICE, P.O.CHIRAKKAL, KANNUR DISTRICT. BY ADV. SRI.MAHESH V RAMAKRISHNAN RESPONDENTS: ------------- 1. MANIKKARA PUTHIYA VEETTIL KUNHAPPA, S/O.ONAKKAN NAIR, AGED 78 YEARS, NO OCCUPATION, RESIDING AT PATTUVAM AMSOM AND DESOM OF TALIPARAMBA TALUK. 2. AMBU, S/O.ONAKKAN NAIR, AGED 65 YEARS, RETD MILITARY SERVICE MAN, RESIDING AT MADAYI AMSOM AND DESOM, KANNUR TALUK. 3. KANNAN, S/O.ONAKKAN NAIR, AGED 55 YEARS, MERCHANT, RESIDING AT MADAYI AMSOM AND DESOM, KANNUR TALUK. 4. KELOTH PADMANABHAN, S/O.POKKAN NAIR, AGED 55 YEARS, NO OCCUPATION, RESIDING AT MADAYIL AMSOM AND DESOM, KANNUR TALUK. 5. SREE NARAYANA EDUCATIONAL & CHARITABLE SOCIETY REPRESENTED BY ITS PRESIDENT, P.RAGHAVAN, AGED 69 YEARS, RETD. RAILWAY EMPLOYEE, MADAYI AMSOM AND DESOM, KANNUR TALUK. 6. SECRETARY O.VALSAN, AGED 50 YEARS, MERCHANT, MADAYI AMSOM AND DESOM, KANNUR TALUK. 7. SREE NARAYANA EDUCATIONAL & CHARITABLE SOCIETY REPRESENTED BY ITS PRESIDENT P.P.KARUNAKARAN, AGED NOT KNOWN, MADAYI AMSOM AND DESOM, KANNUR TALUK. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN SRI.M.V.AMARESAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 37937/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE INTERLOCUTORY APPLICATION NO. IA 422 OF 2006 DT. 7.4.06 EXT.P2. COPY OF THE PLAINT IN OS 38 OF 2006 DT. 7.4.06 EXT.P3. COPY OF THE REPLICATION FILED BY THE PETITIONER BEFORE THE SUB COURT, PAYYANNUR DT. 11.9.06 EXT.P4. COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS 38 OF 2006 BEFORE THE SUB COURT, PAYYANUR, DT. 4.7.06 EXT.P5. COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS 38 OF 2006 BEFORE THE SUB COURT, PAYYANUR, DT. 9.10.06 EXT.P6. COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS 38 OF 2006 BEFORE THE SUB COURT, PAYYANUR, DT. 16.10.06 EXT.P7. COPY OF THE SKETCH PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS 38 OF 2006 BEFORE THE SUB COURT, PAYYANUR, DT. 16.10.06 EXT.P8. COPY OF THE PHOTOGRAPHS WHICH WERE PRODUCED AND MARKED BEFORE THE SUB COURT, PAYYANUR EXT.P9. COPY OF THE COMMON ORDER DT. 9.2.07 IN I.A. 422 OF 2006 AND IA 1096 OF 2006 IN OS 38 OF 2006 OF THE SUB COURT, PAYYANUR EXT.P10. COPY OF THE ORDER DT. 28.4.07 OF THE DISTRICT COURT, THALASSERY IN IA 706 OF 2007 IN CMA 56 OF 2007 EXT.P11. COPY OF THE FINAL ORDER OF THE DISTRICT COURT, THALASSERY DT. 17.9.07 IN CMA 56 OF 2007 EXT.P12. COPY OF THE APPEAL MEMORANDUM IN A.A. OF 2006 FILED BEFORE THE APPELLATE AUTHORITY (LETTER) KANNUR. RESPONDENTS EXHIBITS: EXT.R6(a). COPY OF PURCHASE CERTIFICATE DT. 30.6.1976 EXT.R6(b). COPY OF ORDER ALLOWING PURCHASE CERTIFICATE DT. 25.2.76 EXT.R6(c). COPY OF LAND TAX RECEIPT DT. 15.1.81 EXT.R6(d). COPY OF LAND TAX RECEIPTS DT. 12.10.81 EXT.R6(e). COPY OF LAND TAX RECEIPTS DT. 8.11.02 EXT.R6(f). COPY OF LAND TAX RECEIPTS DT. 8.2.04 EXT.R6(g). COPY OF LAND TAX RECEIPTS DT. 8.12.04 EXT.R6(h). COPY OF LAND TAX RECEIPTS DT. 18.5.06 EXT.R6(i). COPY OF JENM SALE DEED OBTAINED TO THE RESPONDENT DT. 5.1.04 EXT.R6(j). COPY OF THE NOTICE ISSUED BY MADAYI PANCHAYAT TO THE RESPONDENT DT. 2.6.05 EXT.R6(k). COPY OF TAX RECEIPT REMITTED BY THE RESPONDENTS DT. 18.5.06 EXT.R6(l). COPY OF APPLICATION DT. 6.5.05 SUBMITTED BY THE RESPONDENT EXT.R6(m). COPY OF OWNERSHIP CERTIFICATE DT. 2.6.05 ISSUED BY THE PANCHAYAT TO THE RESPONDENT EXT.R6(n). COPY OF PARTITION DEED DT. 7.11.94 EXT.R6(o). COPY OF WRITTEN STATEMENT FILED BY THE 6TH RESPONDENT DT. 4.8.06 EXT.R6(p). COPY OF COUNTER AFFIDAVIT FILED BY THE 6TH RESPONDENT DT. 18.9.06. /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 37937 OF 2008 --------------------- Dated this the 21st day of February, 2008 JUDGMENT This writ petition is preferred against the order of the District Judge, Thalassery in CMA 56/07 whereby the court dismissed the CMA. In para 20 of the judgment, the court held that “there was prima facie indication in favour of D6 and D7. The court had allowed the defendants to complete the construction on an undertaking to demolish the structure built on the property if the suit was decreed against them and the demolition had to be done unconditionally at the risk and cost of the defendants. The undertaking also was given by the defendants.” 2. It is true that there are very vague discussions here and there regarding the merits. But it is clear that the court arrived at a decision on the basis of the undertaking affidavit, which has resulted in this order. 3. Learned counsel for the revision petitioner submits before me that if substantial construction is allowed to be made then certainly it will jeoparadise the interest of the revision petitioner WPC NO 37937/07 2 namely the plaintiff. Therefore the undertaking may not be taken as a ground for permitting the building construction. This is a matter which the court below has to take into consideration. Undertaking affidavit can be taken only as a part for considering the appeal. But the decision shall not be on the basis of the affidavit alone but also on the merits of the case as well. Therefore, I direct the court below to dispose of CMA 56/07 afresh, after hearing both sides in accordance with law. I make it clear that the court has to apply its mind first on the merits of the case and then should give weightage to the undertaking affidavit and then dispose of the matter on or before 31.3.08. The writ petition is disposed of accordingly. Parties are directed to appear before the court below on 15.3.08. M.N.KRISHNAN, JUDGE vps WPC NO 37937/07 3 WPC NO 37937/07 4 WPC NO 37937/07 5