IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 1513 of 2010(O) ------------------------- CMA.120/2009 of ADDL.DISTRICT COURT, THRISSUR OS.280/2009 of MUNSIFF COURT,CHAVAKKAD (IA 1307 /2009) .................... PETITIONER: --------------- K.K.VENUGOPAL, S/O.KRISHNANKUTTY, AGED 55 YEARS, WATCH REPAIRER, KURUMBOOR HOUSE, P.O.KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENTS: --------------- 1. SRI.PRADEEP, S/O. PONNARASSERY MADHAVAN, PONNARASSERY HOUSE, BUSINESS, KANIYAMPAL DESOM, KUNNAMKULAM VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT. 2. KUNNAMKULAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, KUNNAMKULAM, THRISSUR DISTRICT. ADV. SRI.GRASHIOUS KURIAKOSE FOR R2 SMT.T.D.RAJALAKSHMI FOR R1 SRI.R.SREEHARI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1513 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : ORDER DTD. 13.08.2009 IN I.A.No.1307/09 OF THE MUNSIFF COURT, CHAVAKKAD EXHIBIT P2 : JUDGMENT DTD. 15.12.2009 IN CMA No.120/09 OF the 1st ADDL. DISTRICT COURT, THRISSUR RESPONDENTS' EXHIBITS: EXHIBIT R1(a): INSPECTION REPORT DTD. 29.04.2008 SUBMITTED BY K S DINESHKUMAR, ASST. PROFESSOR IN CIVIL ENGG. EXHIBIT R1(b): LETTER DTD. 23.08.2007 OF THE EXECUTIVE ENGINEER, PWD BUILDING DIVISION, THRISSUR EXHIBIT R1(c): ORDER IN MC 163/07 OF SUB DIVISIONAL MAGISTRATE, THRISSUR DTD. 13.06.2008 EXHIBIT R1(d): ORDER IN MC 163/07 OF SUB DIVISIONAL MAGISTRATE, THRISSUR DTD 18.05.2009 EXHIBIT R1(e): AFFIDAVIT and I.A.1307/09 IN O.S.No.280/2009 OF MUNSIFF COURT, CHAVAKKAD EXHIBIT R1(f): COUNTER FILED IN I.A.1307/09 IN O.S.No.280/2009 OF MUNSIFF COURT, CHAVAKKAD EXHIBIT R1(g): REPORT DTD. 26.05.2009 FILED BY THE COMMISSIONER IN I.A.NO.1308/09 IN O.S.No.280/2009 OF MUNSIFF COURT, CHAVAKKAD True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.1513 of 2010 --------------------------------------- Dated this 17th day of August, 2010 JUDGMENT Petitioner, it is not disputed was a tenant of a shop room situated on the first floor of a shopping complex which contained about 39 rooms. A few of those shop rooms including the subject matter of this litigation were purchased by the respondents. There were a series of litigations between the parties one being O.S.No.108 of 2005 filed by petitioner seeking decree for prohibitory injunction against respondents forcibly evicting him from the tenanted premises. While that suit was pending the District Collector, Thrissur directed the Sub Divisional Magistrate (for short, “the SDM”) of that station to initiate action in respect of building under Section 133 of the Code of Criminal Procedure (for short, “the Cr.P.C”) presumably for the reason that building was in such a condition that it was likely to fall down and endanger human life. The SDM initiated action and notice was given to the petitioner and respondent No.1. The SDM ultimately passed order under Section 138 of the Cr.P.C directing demolition of the building. Petitioner challenged that order before learned Sessions Judge, Thrissur in Cr.R.P.No.57 of W.P.C.No.1513 of 2010 : 2 : 2009. The order of the SDM was set aside and the matter was remitted to the SDM for enquiry and disposal. While the matter was pending before the SDM the building collapsed on 25-03- 2009 either as contended by respondent No.1 due to natural reasons or as it was pulled down as claimed by petitioner. Taking note of that the SDM closed the proceeding. Alleging that it was due to the act of respondent No.1 that the building collapsed, petitioner filed O.S.No.280 of 2009 seeking various reliefs including mandatory injunction to direct respondent No.1 to reinstate petitioner after reconstructing the tenanted premises. There was also a prayer to restrain respondent No.2, Municipality from granting sanction to respondent No.1 to reconstruct the building. Petitioner filed I.A.No.1307 of 2009 for an order of temporary injunction to restrain respondent No.1 from forcibly evicting him from the tenanted premises or making new constructions in the property except after evicting him by due process of law. As I stated, there was also a prayer for injunction against respondent No.2 issuing building permit to respondent No.1. The application was opposed but, learned Munsiff as per Ext.P1, order dated 13-08-2009 allowed the application. Respondent No.1 challenged that order in W.P.C.No.1513 of 2010 : 3 : C.M.A.No.120 of 2009. Learned Additional District Judge allowed the appeal and dismissed I.A.No.1307 of 2009 which is under challenge in this writ petition. Learned counsel for petitioner contends that appellate court was not justified in reversing the order of learned Munsiff. According to the learned counsel it is very much in dispute as to how the building collapsed and if it is proved that the building was destroyed by respondent No.1, the latter cannot claim that the lease has come to an end. Learned counsel for respondent No.1, placing reliance on Vannattankandyy Ibrayl Vs. Kunhabdulla Hajee (AIR 2003 SC 4453) contended that in so far as the shop room demised to the petitioner situated on the first floor of building has collapsed, subject matter of the lease is not in existence and hence there is no landlord-tenant relationship between the parties. Learned counsel also pointed out that there is no material on record to show that it was due to the intervention of any human agency, not to say about involvement of respondent No.1 that the building has collapsed. Learned counsel has referred me to the various reports of the SDM had called for in the enquiry under Section 133 of the Cr.P.C. 2. It is not disputed before me that the premises let out W.P.C.No.1513 of 2010 : 4 : to the petitioner was on the first floor of the building. It is also not disputed that whatever be the cause thereof the entire building has come down. It is however to be decided by the trial court whether the subject matter of the lease is totally destroyed and assuming so, it was due to any act of respondent No.1 as petitioner alleged. It is only on petitioner proving that subject matter of the lease subsisted or destruction was due to any act of respondent No.1 that probably, petitioner could claim reliefs prayed for in the suit. As of now, there are Exts.R1(a) and R1(b), reports (which were introduced in evidence in the proceeding before the SDM) and which were produced in I.A.No.1307 of 2009 which are to the effect that the building was in a dilapidated condition, was not serviceable and was likely to fall down. 3. Now the question is whether learned Additional District Judge was justified in interfering with the order of injunction passed by learned Munsiff. I stated that it is prima facie shown that the demised premises has been completely destroyed. I also stated that the question whether any portion of the demised premises still existed is a matter to be proved after trial of the case. In the circumstance, learned District Judge was W.P.C.No.1513 of 2010 : 5 : correct in interfering with the impugned order. I however make it clear that any observation made by the courts below and contained in this judgment will be confined to the disposal of I.A.No.1307 of 2009 and this writ petition arising therefrom. Trial court shall decide the matter untrammeled by any observation or finding contained in the judgment/order under challenge or in the judgment of this court. With the above observation this writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-