IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 CRP.No. 524 of 2008() ----------------------------- AGAINST THE ORDER DATED 08/04/2008 IN IA 1276/08 IN OS.25/2008 of PRL.MUNSIFF COURT,NEDUMANGAD .................... REVN. PETITIONER/1ST DEFENDANT : ---------------------------------------------------- BHARAT SANCHAR NIGAM LIMITED, A GOVERNMENT OF INDIA ENTERPRISE, REPRESENTED BY GENERAL MANAGER, VIKAS BHAVAN, TRIVANDRUM. BY ADV. SRI.C.S.RAMANATHAN RESPONDENTS/PLAINTIFF/2ND DEFENDANT : --------------------------------------------------------------- 1. VISWAMBHARAN, USHA NIVAS, KIDANGIL VEEDU MUKKOLA, THIRUVANANTHAPURAM. 2. PRASSANNAN, TOP INDIAN HARDWARE SHOP, JIGU BUILDING, MUKKOLA, THIRUVANANTHAPURAM. BY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.No. 524 of 2008() ORDER ON I.A.1509 OF 2008 IN CRP 524 OF 2008 DISMISSED 31.7.2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE -TRUE COPY- P.A. TO JUDGE lgk M.SASIDHARAN NAMBIAR, J. ........................................... CRP.No. 524 OF 2008 ............................................ DATED THIS THE 31st DAY OF JULY, 2008 ORDER Petitioner is first defendant. First respondent is the plaintiff and second respondent, the second defendant. Suit was filed for permanent prohibitory injunction restraining defendants from constructing a tower on the top of the shop room of second respondent. I.A.3703 of 2007 was filed for an order of temporary injunction. It was originally granted by the learned Munsiff. Petitioner filed WP(C) 8716 of 2008 before Munsiff court, which was disposed on 14.3.2008 setting aside the order of injunction and directing Munsiff to consider the maintainability of the suit. Petitioner thereafter filed I.A.1276 of 2008 for hearing the question of maintainability of the suit as directed by this court in WP(C) 8716 of 2008. That petition was dismissed by learned Munsiff as per order dated 8.4.2008. This petition is filed challenging that order. 2. Learned counsel appearing for petitioner was heard. Though notice was served on the respondents, they did not appear or dispute the case of petitioner raised in the revision. 3. The argument of learned counsel is that learned Munsiff CRP 524/2008 2 was not justified in considering the objection with regard to the construction of the tower on the other ground which was not pleaded in the plaint. It was pointed out that the action of erecting a tower was challenged in the plaint only on the ground that if the tower is placed in a thickly populated area, it is dangerous to the health of the public. There was no case in the plaint that the tower is proposed to be installed on a weak building without sufficient or strong foundation and therefore it may fall causing damage. What was found by the Munsiff in the impugned order was that if tower is erected in a building which is not strong enough, it will not withstand the weight and therefore there is a chance of collapsing which would be danger to the public. As such a case was not pleaded, the impugned order passed by learned Munsiff is set aside. Learned Munsiff is directed to rehear the question of maintainability of the suit and decide whether suit is maintainable, hear the parties and pass appropriate orders in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk/-