IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 11032 of 2009(O) -------------------------- CMA.21/2008 of SUB COURT,KOTTARAKKARA OS.132/2008 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER(S): ------------------------- NASEER, S/O.EBRAHIMKUTTY, MUHAMMED MANZIL, CHERIYAVELINALLOOR PO, VELINALLOOR VILLAGE, KOTTARAKKARA TALUK. BY ADV. MR.SAJU.S.A RESPONDENT(S): --------------------------- JALALUDEEN, S/O.MUHAMMED MUSHIN MUSALIAR SHALIMAR, ROADVILA, CHERIYA VELINALLOOR PO, VELINALLOOR VILLAGE, KOTTARAKKARA TALUK. BY ADV. MR.B.MOHANLAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11032/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT IN O.S.132/2008 DTD. 7/03/2008 MUNSIFF COURT, KOTTARAKKARA. P2: COPY OF I.A.NO.732/2008 DTD. 7/3/2008 MUNSIFF COURT,KOTTARAKKARA. P3: COPY OF OBJECTION DTD. 17/03/2008 FILED BY THE RESPONDENT. P4: COPY OF ORDER DTD. 24/03/2008 IN I.A.NO.732/2008 O.S.132/2008 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA. P5: COPY OF JUDGMENT DTD. 1/06/2008 IN WPC.NO.16680/2008. P6: COPY OF ORDER DTD. 24/11/2008 IN CMA 21/2008 ON THE FILE OF THE SUBORDINATE JUDGES COURT, KOTTARAKKARA. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE CIRCULAR NO.24136/RA.1/2007/LSGD DTD. 20/06/2007. R1(B): COPY OF THE CIRCULAR NO.24136(1)/RA.1/2007/LSGD DTD.25/07/2007. R1(C): COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY VELLINELLOOR GRAMA PANCHAYATH TO THE RESPONDENT DTD. 12/03/2008. R1(D): COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY VELINELLOOR GRAMA PANCHAYATH TO THE RESPONDENT DTD. 08/08/2008. R1(E): COPY OF THE BUILDING TAX RECEIPT AND BUILDING PERMIT FEE RECEIPT NO.83 AND 84 DTD. 28/05/2008 ISSUED BY THE SECRETARY VELINELLOOR GRAMA PANCHAYATH TO THE RESPONDENT. R1(F): COPY OF THE OWNERSHIP CERTIFICATE AND DETAILS OF THE ASSESSMENT REGISER OF THE BUILDING OF THE RESPONDENT MAINTAINED IN THE VELINELLOOR GRAMA PANCHAYATH DTD. 28/05/2008. /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.11032 OF 2009 -------------------------- Dated this the 23rd day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading up to Ext.P6 and to set aside the same. ii) Issue a writ order or direction directing the respondents to maintain the status quo of the disputed building as on today. iii) To issue such other appropriate writ, order or direction as may be prayed for and which this Hon'ble Court may deem fit to grant under the circumstances of the case. W.P.(C).No.11032 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S 132/2008 on the file of the Munsiff Court, Kottarakara. Suit is one for perpetual prohibitory injunction, and respondent, the defendant. The plaintiff laid the suit when the defendant attempted to put up a construction in 'B' schedule property situate on the South of his property described as 'C' schedule in the suit. According to the plaintiff the construction proposed is in violation of the Building Rules and advancing such a cause the suit was laid in which an application for interim injunction till its disposal was also prayed for. The learned Munsiff after hearing both sides allowed that application against which the respondent preferred an appeal. In the appeal the learned Sub Judge confirmed the order of the learned Munsiff and dismissed the application for injunction. Ext.P6 is the copy of the judgment passed by the learned Sub Judge. Impeaching the W.P.(C).No.11032 OF 2009 Page numbers propriety and correctness of Ext.P6 judgment the petition is filed invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioner submitted that in the appeal some documents were produced by the respondent / appellant with an application under Order 41 Rule 27 of Code of Civil Procedure for its reception as additional evidence. The documents have been relied upon by the learned Sub Judge to pass the impugned judgment without disposing of that application moved by the respondent for receiving them as additional evidence. The court below did not consider the parameters applicable for reception of additional evidence in the appeal as stipulated under Order 41 W.P.(C).No.11032 OF 2009 Page numbers Rule 27 of Code of Civil Procedure and the consideration of the additional documents for revising the order of the learned Munsiff under the impugned judgment therefore, suffers from serious infirmity is the submission of the learned counsel. On the other hand the learned counsel for the respondent / defendant in the suit contended that the question involved was whether the construction was put up in violation of the Kerala Building Rules as amended in June 2007 or not and on the materials placed the court below was satisfied that long before the commencement of the amended provisions the defendant had commenced his construction in 'B' schedule properties and it was done in accordance with the permit and license issued by the authorities. That being so, in exercise of the visitorial jurisdiction vested with this court it is submitted that this court may not interfere with the judgment rendered by the Sub Judge vacating the order of injunction granted by W.P.(C).No.11032 OF 2009 Page numbers the learned Munsiff. 4. Having heard the counsel on both sides at length and considering the facts and circumstances presented, I find that the challenge raised to impeach the judgment rendered by the Sub Judge for the reason that there was improper reception of additional evidence in appeal, contending that it militates against the provisions of Order 41 Rule 27 of Code of Civil Procedure cannot be given unmerited consideration. The reliefs granted in the suit being an equitable relief the question to be considered is whether the appellate court has exercised its discretion properly while disposing the application moved for reception of additional evidence in appeal. Only if it is shown that there was improper exercise of the discretion and all the more that such exercise has resulted in grave injustice, or the order is so perverse, it will be open for this court to interfere with such orders W.P.(C).No.11032 OF 2009 Page numbers passed by the subordinate courts. Whatever be the materials placed before the court with the petition under Order 41 Rule 27 of Code of Civil Procedure in the appeal, the petitioner has no case he was not informed of the particulars or supplied with copies. He has no case that no opportunity was provided to canvass the merit of the documents produced as additional evidence in appeal. The court has not passed separate order on the petition filed, but referred them while considering the merit of the appeal for considering the question whether the discretional relief granted by the lower court is sustainable or not. It cannot be stated, there was an improper exercise of the discretion by the court. Further more in disposing of the appeal, the court has not decided any question with finality but has only disposed of an interlocutory proceeding. Whatever challenges the petitioner has with respect to any of the documents produced by the defendant he can canvass them in W.P.(C).No.11032 OF 2009 Page numbers the trial of the suit if at all the construction is made by the defendant in violation of the Building Rules. The judgment of the appellate court vacating the order of interim injunction will not in anyway assist the defendant to put up a construction violating the Rules, or affect the rights of the petitioner in getting a decree in his suit, substantiating his entitlement for the reliefs claimed. On the facts presented, I find this is not a fit case where interference with Ext.P6 judgment passed by the appellate court is called for invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 5. Writ petition is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv