IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 FAO.No. 123 of 2008() --------------------- AS.105/2004 of SUB COURT, VADAKARA OS.67/2004 of MUNSIFF COURT, NADAPURAM .................... APPELLANT:RESPONDENT IN A.S/DEFENDANT IN O.S. -------------------- THAYAMBATH MAMI, D/O AMMAD HAJI, AGED 66 HOUSEWIFE, KUMMANKODE AMSOM, NADAPURAM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. MR.B.KRISHNAN MR.N.M.RAJAGOPALAN MR.R.PARTHASARATHY RESPONDENTS: APELLANTS IN A.S./PLAINTIFFS IN O.S. ------------------------ 1. PUTHANPURAKKAL SOOPPY,S/O KUNHAVULLA, AGED 60 YRS, BUSINESS, RESIDING AT PERUVANNOOR, IYYAMKODE AMSOM, KAKKATTIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. THUNDIPARAMBATH ASHIQUE, S/O AMMAD MASTER, AGED 38 YRS, BUSINESS, IYYAMKODE AMSOM, VISHNUMANGALAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 3. MADATHIL MUHAMMED ALIAS M.KUNHAMMAD, S/O KUNHIMOOSSA HAJI, AGED 59 YRS, BUSINESS, KUNINGAD AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 4. MADATHIL MAMI, W/O KUNHAMMAD, AGED 53 YRS. KUNINGAD AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 5. PERUVANNOOR K.P.KUNHIPATHU, W/O V.P.SOOPPY, AGED 42 YRS, BUSINESS, IYYAMKODE DESOM AMSOM, KAKKATTIL DESOM, VATAKARA TALUK KOZHIKODE DISTRICT, KERALA STATE. (...2/-) F.A.O.123/08 (2) 6. AKSA HARDWARE KALLACHI-REPRESENTED BY ITS MANAGING PARTNER, 1ST PLAINTIFF P.P.SOOPPY, S/O. KUNHAVULLA AGED 60 YRS, BUSINESS, RESIDING AT PERUVANNOOR, IYYAMKODE AMSOM, KAKKATTIL DESOM, VATAKARA TALUK KOZHIKODE DISTRICT, KERALA STATE. ADV. MR.JACOB ABRAHAM FOR R1-6 MS.KOCHUMOL KODUVATH FOR R1-6 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: F.A.O.123/2008 ORDER ON I.A. 2026 OF 2008 IN F.A.O.123 OF 2008 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 12.2.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O. No. 123 OF 2008 -------------------------------------------------- Dated this the 12th day of February, 2009 J U D G M E N T Defendant in O.S. 67 of 2004 on the file of Munsiff Court, Nadapuram is challenging the order of remand passed by Sub Court, Vadakara in A.S. 105 of 2004 filed by the respondents herein, the plaintiffs in the suit, for specific performance and damages. Respondents sought specific performance of Ext.A1 agreement executed by the appellant and respondents filed in R.C.P. 4 of 1997 before Rent Control Court, Nadapuram. That R.C.P. was filed by the appellant seeking an order of eviction of the respondents from the building occupied by them as tenants. Under Ext.A1, the tenanted building was surrendered on the agreement entered into with the appellant that appellant will construct a building immediately, on getting the plan already submitted to the Panchayat for construction of a shopping complex, to the south of the existing shop building and construction would be completed within six months and thereafter one of the rooms in the shop building, at the option of FAO.123/2008 2 respondents will be rented out to them on a monthly rent of Rs.1200/-. Contending that appellant did not construct a shop building as agreed and instead demolished the shop building got vacated by respondents, a decree for specific performance of that agreement was sought. Ext.A1 agreement does not provide a separate schedule, where the building is to be constructed. A reading of the agreement makes it clear that the proposed building is to be constructed to the south of the building occupied by the respondents which was the subject matter of R.C.P.4 of 1997. In paragraph 4 of the plaint, respondents, while seeking a decree for specific performance of Ext.A1 agreement by directing appellant to construct building as provided in Ext.A1, contended that, the building is to be constructed at the place where the original shop building was existing and subsequently got vacated by the appellant and demolished. 2. For the reason that the decree for construction of a building was sought at the place where the shop building was originally standing, appellant contended that respondents are not entitled to a decree for specific performance of the agreement in the plaint schedule property. FAO.123/2008 3 3. Learned Munsiff dismissed the suit holding that as per the plaint descriptions, plaint schedule property is the very same property covered by R.C.P. 4 of 1997 as the northern boundary is the road and the southern boundary is the remaining property and as per the agreement the new building is to be constructed to the south of the building in R.C.P. 4 of 1997. In an appeal filed by respondents, learned Sub Judge without considering the appeal on merits remanded the suit to the trial Court granting an opportunity to the respondents to get the plaint schedule property identified. The order of remand is challenged in this appeal filed by the defendant in the suit. The appeal was admitted formulating the following substantial questions of law: 1) Whether the Lower Appellate Court was justified in remitting the matter for consideration when relief for specific performance was refused by the Trial Court and no grounds are referred to remit the matter in the context of the judgment reported in 1988(2) KLT 957. 2) Whether the Lower Appellate Court FAO.123/2008 4 overlooked the finding of the Trial Court in paragraph 21 when the Trial Court has refused relief for specific performance since the plaintiff had shown a different item of property for relief than what is mentioned in the agreement. 4. Learned counsel appearing for appellant and respondents were heard. 5. A perusal of the plaint with Ext.A1 agreement and Ext.B1 order in R.C.P. 4 of 1997 establish that the property in R.C.P. 4 of 1997 and the plaint schedule property in the suit is one and the same as rightly found by the learned Munsiff. The description of the building in R.C.P. 4 of 1997 shows that, that building lies to the south of the northern road and to the south of the shop building is the remaining property of the landlord. Ext.A1 shows that the agreement was to construct a building to the south of the existing building, which could only be in the remaining property shown as the southern boundary in R.C.P.4 of 1997. But, as per the plaint, the northern boundary is the road and the south, the remaining property of the appellant. FAO.123/2008 5 Unless the agreement is to construct a building in the same place, where the shop building was originally standing or inclusive of that space, the property, where the building is to be constructed, can only be to the south of the then existing building in R.C.P. 4 of 1997. In any case, it cannot be immediately to the south of the northern road. Therefore, the plaint schedule property as such cannot be the subject matter of Ext.A1 agreement. The property covered by the agreement, is definitely the property which lies to the south of the property in R.C.P. 4 of 1997. There is no dispute with regard to the identity of property in R.C.P.4 of 1997 in between the parties. In such circumstances there is no necessity to identify the property as directed by the learned Sub Judge. 6. Unfortunately learned Sub Judge did not consider the appeal on merits and on the basis that trial Court dismissed the suit on the ground that identity is not established, holding that an opportunity is to be granted, the suit was remanded. What is to be decided by learned Sub Judge while considering the appeal is whether respondents are entitled to a decree for specific performance of Ext.A1 agreement and if they are entitled to, FAO.123/2008 6 whether such a decree could be granted in respect of the plaint schedule property. As this aspect was not considered by the Sub Judge, the order of remand can only set aside and A.S. 105 of 2004 remanded to Sub Court, Vadakara for fresh disposal in accordance with law. Learned counsel appearing for respondents submitted that in any case they are entitled to get the damages for the delay in construction of the building and that question was not considered. That is also a matter to be considered by Sub Judge, while hearing the appeal. Appeal is allowed. The judgment in A.S.105 of 2004 on the file of Sub Court, Vadakara is set aside. A.S.105 of 2004 is remanded to the Sub Court for fresh disposal in accordance with law. Learned Sub Judge has to consider the appeal on all the grounds canvassed by the appellants and respondents. Parties are directed to appear before Sub Court, Vadakara on 10.3.2009. Refund the court fee. M. SASIDHARAN NAMBIAR, JUDGE okb