IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 SA.No. 271 of 2000(G) --------------------- AS.4/1994 of I ADDL.DISTRICT COURT, ERNAKULAM OS.221/1990 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S) (RESPONDENTS 1 AND 2 IN THE APPEAL AND DEFENDANTS 1 AND 2 IN THE SUIT) :- -------------------------------------------------------- 1. CORPORATION OF KOCHI REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, ERNAKULAM. 2. ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF KOCHI, ZONAL OFFICE, VYTTILA. BY ADV. SRI.K.G.SARATHKUMAR SRI.S.HEMANTH SANTHOSH RESPONDENT(S)/(APPELLANTS AND 3RD RESPONDENTS IN THE APPEAL AND PLAINTIFFS AND 3RD DEFENDANTS IN THE SUIT) :- ----------------------------------------------------------------------------------- 1. SURMI MAMMOOTTY, AGED 19, D/O.MAMMOOTTY, PANAPPARAMBIL HOUSE, CHEMBU, VAIKOM NOW RESIDING AT NO.11, FIRST CROSS STREET, KARPAKOM GARDENS, BASANTH AVENUE, ADYAR, MADRAS – 20. 2. DULKAN SALMAN, AGED 17, S/O.MAMMOOTTY, PANAPPARAMBIL HOUSE, CHEMBU, VAIKOM NOW RESIDING AT NO.11, FIRST CROSS STREET, KARPAKOM GARDENS, BASANTH AVENUE, ADYAR, MADRAS – 20. REPRESENTED BY HIS FATHER P.I.MUHAMMED KUTTY. 3. P.I.MUHAMMED KUTTY @ MAMMOOTTY, AGED 49, S/O.ISMAIL, CINE ARTIST, PANAPARAMBIL HOUSE, CHEMBU, VAIKOM NOW RESIDING AT NO.11, FIRST CROSS STREET, KARPAKOM GARDENS, BASANTH AVENUE, ADYAR, MADRAS – 20. SA.No. 271 of 2000 4. MRS.SULFATH, AGED 39, W/O.MAMMOOTTY, PANAPPARAMBIL HOUSE, CHEMBU, VAIKOM NOW RESIDING AT NO.11, FIRST CROSS STREET, KARPAKOM GARDENS, BASANTH AVENUE, ADYAR, MADRAS – 20. 5. THOMAS JOHN KITHO, CONNEXIONS, XII, STADIUM COMPLEX, NEAR KSRTC, STADIUM ROAD, KOCHI – 35. ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1TO4 SRI.K.R. RADHAKRISHNAN NAIR FOR R1TO4 SRI.K.K.CHANDRAN PILLAI FOR R5 SRI.BHASURA VALSAN.K FOR R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No.271 of 2000-G - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2011. JUDGMENT A very short question arises for consideration in this appeal, which is put forward by the defendants in O.S.No.221 of 1990 who suffered decrees at the hands of both the courts below. 2. The prayer in this appeal is to consider whether the lower appellate court is justified in setting aside the rider clause in the trial court decree not to demolish any portion of the retaining wall constructed on the sides of the plaint schedule property except in accordance with law. 3. After taking evidence, the trial court passed decree which reads as follows :- “In the result, the suit is decreed and a permanent prohibitory injunction is granted in favour of the plaintiffs restraining the defendants acting by themselves or through their subordinates from interfering with the peaceful possession and enjoyment of the plaint schedule properties by the S.A.271/2000. 2 plaintiffs and from dispossessing the plaintiffs from any portion of the plaint schedule properties and from demolishing any portion of the retaining wall constructed on the sides of the plaint schedule properties except in accordance with and under due process of law, after complying with the necessary formalities and the principles of natural justice. The plaintiffs are also entitled for their costs in the suit.” Being aggrieved in the rider clause of the trial court decree, the plaintiffs filed appeal as A.S.No.4 of 1994 before the 1st Addl. District Court, Ernakulam. The lower appellate court confirmed the decree of the trial court but deleted that portion of decree of the trial court which permitted the defendants to take steps as available under law. Aggrieved by that portion of the decree, defendants 1 and 2 come up in appeal. 4. The lower appellate court could not have deleted the clause enabling the appellants herein to take such steps as are available to them under law against any illegal construction. Being a statutory authority, they are bound to take note of putting up of structure violating the S.A.271/2000. 3 rule and they have to take necessary steps. The lower appellate court therefore was in error in deleting the rider clause attached to the decree passed by the trial court. In the result, this appeal is partly allowed. That part of the judgment and decree of the lower appellate court deleting the rider clause is set aside and the decree of the trial court to that extent is restored. P. BHAVADASAN, JUDGE Jvt.