IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 WP(C).No. 29290 of 2008(J) -------------------------- AGAINST THE ORDER DATED 23/9/2008 IN IA.78/2008 IN CMA NO.4/2008 of FIRST ADDITIONAL DISTRICT COURT, THRISSUR .................... PETITIONER(S): --------------- JOSE , AGED 57, S/O.KONIKKARA OUSEPH OLLUR VILLAGE, DESOM, THRISSUR. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): --------------- RAPPAI, S/O.KONIKKARA DEVASSY OLLUR VILLAGE, DESOM, THRISSUR. ADV. SRI.JIJO PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 2078/2006 BEFORE THE FIRST ADDITIONAL MUNSIFF'S COURT, THRISSUR EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED IN OS NO.2078/2006 EXT.P3 TRUE COPY OF REPORT OF THE ADVOCATE COMMISSIONER WHO VISITED THE PROPERTY ON 22.7.2006 EXT.P4 TRUE COPY OF THE ORDER IN IA NO.5298/06 IN OS 2078/06 EXT.P5 TRUE COPY OF REPORT OF THE ADVOCATE COMMISSIONER DATED 21.11.2007 EXT.P6 TRUE COPY OF ORDER DATED 11.12.2007 IN IA NO.9854/2007 EXT.P7 TRUE COPY OF ORDER DATED 10.9.2008 IN IA 78/2008 IN CMA 4/2008 EXT.P8 TRUE COPY OF AFFIDAVIT DATED 23.9.2008 FILED BY RESPONDENT IN CMA NO.4/2008 EXT.P9 TRUE COPY OF ORDER DATED 23.9.2008 PASSED BY FIRST ADDITIONAL DISTRICT COURT, THRISSUR IN IA NO.78/2008 IN CMA 4/2008 RESPONDENT'S EXHIBITS: EXT.R1(a) TRUE COPY OF THE BUILDING PERMIT NO.OLR/BA/129/0807 DATED 23.9.2008 EXT.R1(b) TRUE COPY OF THE AGREEMENT/UNDERTAKING MADE BY THE RESPONDENT BEFORE THE THRISSUR CORPORATION DATED 20.9.2008 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.29290 of 2008 J -------------------------------------- Dated this the 22nd day of October, 2008. JUDGMENT Heard both sides. 2. Challenge in this petition is to Ext.P9 order dated 23.9.2008 passed by learned First Additional District Judge, Thrissur in I.A.No.78 of 2008 in C.M.A.No.4 of 2008. 3. Respondent is the owner of plaint C schedule property. Plaint A and B schedule properties belonged to the petitioner. Petitioner filed O.S.No.2078 of 2006 in the First Additional Munsiff's Court, Thrissur seeking injunction against the respondent constructing building in plaint C schedule property in violation of Building Rules. There is also a prayer to restrain the respondent from trespassing into plaint A and B schedule properties. An application for temporary injunction against construction in the plaint C schedule was also filed. Respondent filed Ext.P2, written statement contending that there is no attempt for any such construction and instead, he is only renovating the dilapidated portion of the bathroom and kitchen. He also stated that he will not undertake any construction without getting permit from the Corporation. In that petition, in view of the contentions raised by the respondent in the written statement and what the Advocate Commissioner reported in Ext.P3, learned First Additional Munsiff refused to grant any order of injunction as seen from WP(C) No.29290/2008 2 Ext.P4. According to the petitioner, pending the suit the respondent demolished the structure that existed in the plaint schedule which was reported by the Advocate Commissioner in Ext.P5. Later, respondent started construction of the house in the plaint C schedule. Learned First Additional Munsiff vide Ext.P6, order rejected the prayer for temporary injunction. Petitioner carried the matter into the appellate court and filed C.M.A.No.4 of 2008. There was an interim order of status quo as per order in I.A.No.78 of 2008. It is contended that when the interim order of status quo was sought to be extended, respondent filed Ext.P8 statement to the effect that he will construct the building in plaint C schedule property only on getting permission from the Corporation. It is based on that statement that Ext.P9, order dated 23.9.2008 was passed. Learned counsel for petitioner submitted that there is no bona fides on the part of the respondent as revealed from the records and that respondent is attempting to get a permit from the Corporation subject to certain conditions. It is the further contention that there is no provision in the Building Rules for issuing such a conditional permit. Counsel also contended that Ext.P5 would show that the provisions in the Building Rules regarding side measurement has been violated. Counsel for respondent contended that there is not even a proper plea in the plaint regarding violation of Building Rules, not to say about sufficient materials to indicate that. It is contended that petitioner has not chosen to challenge the permit issued to the respondent before the Tribunal. WP(C) No.29290/2008 3 4. Though, learned counsel for petitioner contended that no construction can be permitted without properly identifying the boundary between A and C schedule properties, learned counsel in all fairness conceded that there is no such averment in the plaint nor any prayer for fixation of boundary. Therefore, that part of the contention cannot be entertained in this proceedings. 5. So far as the contention that local authority has no right to issue a conditional permit is concerned, it is unnecessary to go into that question at this stage since the civil court is seized of the matter and it is open to the court to consider that question if it arises for consideration in the C.M.Appeal or suit. 6. What remained for consideration is only whether this Court is required to interfere with Ext.P9, order in the C.M.Appeal. It is contended by the respondent that there is rule under the Building Rules. What learned counsel for petitioner pointed out from Ext.P5 (answer to question No.4) is that the side measurement as provided in the Building Rules is not left by the respondent but at present it is not discernible from Ext.P5 that the side measurement is less than what is provided in the Building Rules. That is really a matter for enquiry by the appellate court while considering the C.M.Appeal or at the trial stage, as the case may be. This Court is not required to express any opinion in the matter at this stage. 7. Ext.P9, order permitted respondent to construct building in plaint C schedule after getting sanction from the local authority. Ext.R1(a) is the permit issued to the respondent. Learned First Additional District Judge has WP(C) No.29290/2008 4 also directed that if any construction is made by the respondent that will be subject to the result of the final finding in the case and that the construction will be at the risk and cost of the respondent. 8. While exercising powers under Article 227 of the Constitution, it is not open to this Court to go into the disputed questions of fact. This Court is also not sitting in appeal over the order passed by the courts below. The direction made by the learned First Additional District Judge is sufficient to protect the interest of the petitioner if it is shown that the construction is in violation of the Building Rules. Counsel for petitioner submits that the construction of basement was even before getting permission from the local authority. That also is a matter to be looked into by the appellate or trial court at the appropriate stage. Civil Court has ample power to issue appropriate directions for demolition in case the construction is found to be in violation of the Building Rules. In the light of that, interference on Ext.P9 order is not called for. Writ Petition is therefore, dismissed. THOMAS P.JOSEPH, JUDGE. cks