IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 FAO.No. 337 of 2007() ------------------------------ AS.42/2006 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.608/2003 of ADDL.MUNSIFF COURT,KOZHIKODE-I .................... APPELLANT/RESPONDENT/DEFENDANT: ------------------- NOREEN LUCY MENDONCE (THE NAME OF APPELLANT HEREIN SHOWN IN THE CAUSE TITLE(NOORIN LUZY METTILDA TONS) IN THE IMPUGNED APPEAL ORDER AND IN THE JUDGMENT OF LEARNED MUNSIFF IS NOT CORRECT),AGED 57 YEARS,HOUSE NO.3/1602,TEACHER,NANADATH PARAMBIL(H),KACHERI AMSOM,DESOM,KOZHIKODE TALUK&DT BY ADV. SRI.K.M.FIROZ RESPONDENTS: APPELLANT/PLAINTIFF: --------------------------------- K. BALAKRISHNAN, S/O. RAMAN, AGED 68 YEARS, "KULIRMA", 3/1566, OPP.VELLAYIL RAILWAY STATION, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.M.GEORGE THOMAS FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ===================== FAO No.337 OF 2007 ===================== Dated this the 22nd day of July 2008 JUDGMENT This appeal is preferred against the judgment of the II Addl.District Judge, Kozhikode in A.S.No.42 of 2006, whereby he has remanded the matter for fresh consideration. The questions of law formulated are extracted as follows: (a)Whether on the facts and in the circumstances of the case, is the Lower appellate Court justified in law in remanding the matter to the trial court observing that the boundary separating the properties of the appellant and respondent could only be ascertained by a proper survey of the property in accordance with title deeds and village plans more so when there was no specific pleading or issue relating to the same in the trial court and no court fee was paid in respect thereof? Has not the lower appellate court exercised jurisdiction beyond the scope of the suit? (b) Whether on the facts and in the circumstances of the case, the lower appellate court is justified in law in directing the trial court to consider the amendment application which was filed belatedly at the appellate FAO 337/2007 -:2:- stage. Is not the direction issued by the appellate court beyond the scope of Order VI rule 17 of the amended C.P.C.? (c)Can the appellate court direct the trial court to consider an amendment application filed before the appellate court before considering the sustainability of such an application? (d) Is the lower appellate court justified in law in remanding the matter without considering the question of non-disclosure specifically considered and found against the plaintiff by the trial court? Having left the aforesaid points undisturbed, is the appellate court justified in law in remanding the matter on other grounds? (e)Has not the lower appellate court committed an error in setting aside the judgment and decree passed by the trial court and remanding the matter for fresh consideration more so when the prayer in the suit was for demolition of unauthorised construction and then the plan and licence obtained by the defendant has not been challenged? (f)Is not the appreciation of evidence by the lower appellate court perverse? Has not the lower appellate court based its judgment on irrelevant aspects and failed to consider relevant aspects of the case? 2. The suit is one for permanent injunction to restrain the defendant FAO 337/2007 -:3:- from carrying out the construction of the house in the property situated adjacent to the plaint schedule property and also ordering demolition of all unauthorised constructions. A basic fact to be understood in this case is the plaintiff and defendant are neighbours and the defendant is having her house on the eastern side of the plaintiff's house. In between the plaintiff and the defendant's property there is a compound wall. The construction and occupation of the ground floor of the defendant's property cannot be disputed and there had not been any action on the basis of any violation of the rules at that stage. Now the plaintiff has filed the plaint at a stage when the defendant attempted to construct something on the edge of the roof whereby the plaintiff apprehended it will amount to violation of the building rules and also the safety of his property and therefore an injunction was sought for restraining her from doing such construction. 3. The defendant, on the other hand, would contend what was constructed by her was only a parapet wall on the edge of the roof and subsequently it has been demolished. It is also her case that she had obtained a plan and license by the Corporation and had constructed in accordance with the plan and license which is issued under the Building Rules. Now we are in a situation where original act of construction of a parapet wall does not exist for the reason that during the pendency of the FAO 337/2007 -:4:- suit, it had been demolished. Secondly there had been a construction on the above ground floor which according to the defendant is strictly in consonance with the license issued by the Corporation authorities. It has to be remembered that there is nothing before court which would indicate that evidence is let in to show that Ext.B3 is issued against the provisions of law and a construction had been done in violation of Ext.B3. Admittedly, the plaintiff could not have raised such a contention at the time of institution of the suit for the reason that it was not in existence at that point of time. Or, in other words, what the defendant has done is to demolish or construct, whatever it may, alleged in the plaint and subsequently had constructed over the ground floor something which is the subject matter now. The court below found that as per the rules , there must be 1.2 meters gap of one side and 1 meter gap on the other side and by some arithmetical proposition had held that 1.2 meters and 98 cms are available and therefore there is no violation of the building rules and therefore held that construction can be done in accordance with Ext.B3, etc. The plaintiff has sought for a prayer for mandatory injunction in the suit, but most probably it relates to the construction which is alleged to be made on the edge of the roof which is not in existence at that point of time. The court below found that there is not even a schedule and therefore taking into consideration these FAO 337/2007 -:5:- propositions dismissed the suit. 4. The appellate Judge held that it is necessary to measure the property and find out whether there has been compliance of the building rules. It also directed the court below to consider the amendment application, which was filed before the said court. It is on that basis a remand order has been made. 5. First of all I may like the District Judge to consider the prayer in the suit and also the question whether any other prayer without incorporation of an additional prayer can be granted in this suit espepcially for the reason that Ext.B3 plan was not in existence at the time of the institution of the suit and thereafter there has been no challenge against Ext.B3. So, it is a point that the court has to consider especially understanding the purport and scope of the suit instituted by the plaintiff. When this scope is understood and it is found that it is entertainable then only the next question as to the fact whether there has been construction in accordance with the building rules arise. At that point, it has also to be noted whether the possession has to be determined on the basis of a compound wall which was in existence for a quite long time and over which there was no dispute between the parties. So the question how far the existence of that compound wall and how far it will affect the building rules FAO 337/2007 -:6:- are all matters which the appellate court has to prima facie consider to fi9nd out whether a further evaluation is necessary on that topic. 6. Lastly, regarding an amendment application. Ordinarily, amendment application or application for considering additional documents are considered by the court at the stage of hearing the appeal so that if the court ultimately finds that amendment has to be allowed or documents are to be received, then the court passes an order and then sends back the matters, if it requires additional particulars. Even before considering whether an amendment application is really entertainable or necessary the appellate court has directed the court below to consider that application. I think it is also not a correct approach. 7. From these materials, I hold that the matter requires reconsideration at the hands of the learned District Judge himself and he may consider the points discussed by me above in detail and if he finds that a remand is necessary, he may do the same after hearing the parties. I make it clear that the learned Addl.District Judge may consider the scope of the suit to start with before considering these points so that it will have a great bearing on the result, which is to follow . I make it clear that these observations are made by me only for the purpose of finding out the correctness of the judgment and it may not be taken as a view on this matter by this court and FAO 337/2007 -:7:- the District Judge is given independent freedom to consider those factors in the light of the materials available before it as an appellate court and decide the matter in accordance with law. So the order of remand is set aside and the matter is send back to the II Addl. District Court for fresh consideration of the appeal on the points enunciated and on any other particulars if the parties so choose. Parties are directed to appear before the IInd Addl.District Court on 26.8.2008. M.N.KRISHNAN, JUDGE Cdp/-