IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 30319 of 2006(H) -------------------------- OS.73/2006 of PRL.M.C., KOCHI .................... PETITIONER: ------------- K.J.FELIX, S/O.JACOB, AGED 57 YEARS, KATTIPARAMBIL HOUSE, THEKKE THAMARAPARAMBIL, FORT KOCHI. BY ADV. SRI.K.C.ELDHO RESPONDENTS: ----------------- 1. RAVISHANKAR RAJ, AGED 41 YEARS, S/O.P.BALAKRISHNAN, BUSINESS, HOUSE NO.10/1576, OPP. CCEA HALL, SOUTH THAMARAPARAMBU, FORT KOCHI. 2. CORPORATION OF KOCHI, REP. BY SECRETARY, ERNAKULAM. 3. ASSISTANT ENGINEER, CORPORATION OF KOCHI, ZONAL OFFICE, FORT KOCHI. 4. SUB INSPECTOR OF POLICE, FORT KOCHI. R1 BY ADV.SRI.V.N.VASANTH KUMAR R2 BY ADV. SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATION R4 BY GOVT. PLEADER, SMT. R. BINDU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 30319 OF 2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE BUILDING PERMIT DATED 19.11.05 ISSUED TO THE PETITIONER FOR EXTENSION WORK. EXT.P2 : TRUE COPY OF THE FIR IN CRIME NO.28/2006 OF FORT KOCHI POLICE STATION. EXT.P3 : TRUE COPY OF THE PLAINT IN IS NO.73 OF 2006 FILED BY THE 1ST RESPONDENT ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, KOCHI. EXT.P4 : TRUE COPY OF IA NO.1630 OF 2006 IN OS NO.73 OF 2006 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, KOCHI. EXT.P5 : TRUE COPY OF ORDER DATED 04.10.06 IN IA NO.1630 OF 2006 IN OS NO.73 OF 2006 OF THE PRINCIPAL MUNSIFF COURT, KOCHI. /TRUE COPY/ PA TO JUDGE M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 30319 OF 2006 --------------------- Dated this the 7th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff, Kochi, in IA 1595/06 in OS 103/06 & IA 1630/06 in OS 73/06. The court considered issue No.2 in OS 103/06 as a preliminary issue and in the other case the court also considered whether OS 73/06 and OS 103/06 are maintainable. Therefore the question that arises for determination is regarding the maintainability of the suit, OS 73/06. A perusal of the plaint would reveal that the pleadings are vague as anything but still, the court is bound to pass some orders. The prayer reads as follows: “Hence it is humbly prayed that the Hon'ble Court may be pleased to pass a judgment and decree in favour of this plaintiff and against the defendant, their agent and men directing them not to trespass into any portion of the plaintiffs property and issue mandatory injunction also for removing unlawful construction from the boundary overlapping for the peaceful enjoyment of the plaint property west side portion. The first defendant may also be directed to measure and demarcate his property based on his document.” 2. On a total reading of the plaint one has to presume that the plaintiff has instituted the suit with respect to the violation of right WPC NO 30319/06 2 made on the property. According to the plaintiff, while he was staying away, the 1st defendant constructed a portion of the compound wall by encroaching at two feet width from the existing compound wall and reconstructed under the pretext of repairing. He also would contend that he has constructed a shed on iron truss by piercing the wall and its major portion is projecting to the plaintiff's property. Plaintiff complains it to the Corporation of Kochi and they have passed an interim stay order for stoppage of the work. Now the Corporation, the Engineer and the Sub Inspector all has been drawn into the litigation without mentioning what is the relief that the plaintiff wants against them. The prayer portion will only show against the defendant. When I attempted to clarify it, learned counsel, who was appearing on an earlier occasion, would submit that it is only against the 1st defendant. I leave it there. But the applicability of Section 544 and 563 of the Kerala Municipality's Act need not detain long in this litigation for the reason that the main dispute is with respect to the right over the property between the plaintiff and the 1st defendant. 3. The grievance of the plaintiff appears to be that a new wall is reconstructed by encroaching into the property of the plaintiff and the shed is constructed on iron truss which according to the WPC NO 30319/06 3 plaintiff has pierced into the plaintiff's property. This is a matter of civil right and the fight is between the plaintiff and the 1st defendant with respect to the civil right which has culminated in a civil dispute. I think the competent authority is the civil court to decide that issue and dragging of the Municipality and other officers, I do not feel was necessary. But, at this stage, I do not want to comment upon the same. 4. Therefore, I feel the reliefs sought for in the plaint is purely a settlement of civil right between the plaintiff and the 1st defendant and therefore the court below can confine to that point and decide the litigation in that aspect especially for the reason that there is absolutely no prayer or plea against the other defendants in the suit. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 30319/06 4 WPC NO 30319/06 5 WPC NO 30319/06 6