IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 RSA.No. 1234 of 2006() ---------------------- AS.72/1998 of PRINCIPAL SUB COURT,ATTINGAL OS.347/1992 of MUNSIFF COURT,ATTINGAL .................... : APPELLANT/RESPONDENT/PLAINTIFF. ------------------------------------------------ AMRTHAVALLI, D/O.LAKSHMI, KIZHAKKEVLLAKOM VEEDU, CHIRAYINKEEZHU DESOM, CHIRAYINKEEZHU DESOM VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: APPELLANTS/DEFENDANTS. ------------------------------------------------ 1. STATE OF KERALA REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETRIAT, TRIVANDRUM. 2. THE ASSISTANT ENGINEER, MAJOR IRRIGATION, ATTINGAL. BY GOVERNMENT PLEADER SRI.L.G.SURESH BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1234 OF 2006 =========================== Dated this the 7th day of February, 2008 JUDGMENT Plaintiff in O.S.347/1992 on the file of Munsiff Court, Attingal is the appellant. State and Assistant Engineer of PWD the defendants are respondents. Suit was filed for a permanent prohibitory injunction contending that one Sarojini has been in possession of the plaint schedule property and appellant purchased her right under Ext.A1 agreement on 23.7.1992 and second respondent attempted to evict appellant by force and therefore respondents are to be restrained by a permanent prohibitory injunction from forcible eviction of appellant. Respondents resisted the suit contending tht they are not aware of the rights claimed by appellant and second respondent did not try to evict appellant and there is no cause of action for the suit and suit is to be dismissed. Learned Munsiff granted a decree R.S.A.1234/06 2 relying on Exts.A1 to A7 marked on the side of appellant, though no oral evidence was adduced. Defendants challenged the judgment before Sub Court, Attingal. By that time appellant had taken back the entire exhibits marked in the suit from the trial court undertaking to produce them as and when called for. After filing of the appeal,when the records were called for from the trial court, it was revealed that exhibits marked on the side of appellant were taken back by the appellant. Appellant was therfore directed to produce the exhibits. She did not produce them. Learned Sub Judge on reappreciation of evidence found that in the absence of the documents relied on by the trial court case of the appellant cannot be upheld and allowed the appeal and dismissed the suit. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. 3. The argument of the learned counsel is that first appellate court should not have dismissed the suit by reversing the decree of the trial court and should have decided the appeal on merits on the R.S.A.1234/06 3 evidence. It was argued that judgment of the trial court establish that under Ext.A1 appellant obtained the property and also obtained licence and therefore respondents are not entitled to forcibly evict appellant other than by recourse to law and a decree should have been granted. 4. In the written statement itself respondents specifically contended that they did not attempt to forcibly evict appellant as alleged in the plaint and there is no cause of action. Even though this was the contention taken appellant did not adduce any oral or documentary evidence to prove that there was an attempt to forcibly evict her other than by due process of law. Appellant in fact instituted O.S.190 of 1994 after the decree granted by the trial court in respect of the very same plaint schedule property against the Panchayat contending that suit property is a puramboke land and Panchayat is attempting to evict her by force. 5. The first appeal was allowed and the suit stood dismissed on 14.3.2006. Since then there was no order in favour of the appellant. If the apprehension of forcible eviction is true, R.S.A.1234/06 4 appellant would have been forcibly evicted by this time as more than two years expired after the disposal of the appeal and dismissing the suit. In such circumstance, I do not find any reason to interfere with the discretion exercised by the first appellate court, especially when appellant of her own volition obtained back the entire exhibits produced and marked on her side and did not make them available to first sappellate court to consider whether the documents related to the disputed plaint schedule property in violation of the undertaking given to the court. A person like appellant who has no regard for the undertaking given to the court is not entitled to the discretionary relief. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006