IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 AS.No. 23 of 1998() --------------------------- OS.455/1995 of PRL.S.C.,THALASSERY .................... APPELLANT(S): ---------------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, CANNANORE. 2. THE TAHSILDAR, TELLICHERY. 3. THE REVENUE DIVISIONAL OFFICER, TELLICHERY. BY GOVERNMENT PLEADER SRI. P.K.BABU RESPONDENT(S): ------------------------- 1. P.P.UMMER HAJI (DIED) 2. KAYYALAKKAKATH ASHRAF, S/O.UMMER HAJI, AGED 42 YEARS, BUSINESS,RESIDING AT PAZHASSI AMSOM, MATTANNUR DESOM. 3. KAYYALAKKAKATH RAZAK, S/O.UMMER HAJI, AGED 40 YEARS, BUSINESS, RESIDING AT -DO- 4. KAYYALAKKAKATH NAZZAR,S/O. UMMER HAJI, AGED 35 YEARS BUSINESS, RESIDING AT -DO- 5. KAYYALAKKAKATH MARZOOK, S/O.UMMER HAJI, AGED 33 YEARS, BUSINESS , RESIDING AT -DO- ( SUPPL. PLAINTIFFS REPRESENTED THROUGH THEIR POWER OF ATTORNEY HOLDER KAYYALAKKAKATH ISMAIL, S/O. UMMER HAJI, AGED 45, BUSINESS, RESIDING AT P.P HOUSE, PAZHASSI AMSOM, MATTANNUR DESOM, HALANERY TALUK.) R2 TO R5 BY ADVS. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID FOR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. ........................................... A.S.NO.23 OF 1998 ............................................. Dated this the 1st day of November, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thalassery in O.S.No.455/1995. The suit is one for permanent injunction. It is the case of the plaintiff that the plaint A and B schedule properties constitute two sites occupied by the shop building belonging to the plaintiff. The plaint A schedule property is comprised in R.Sy.No.25/4 and in R.Sy.No.26 of Pazhassi amsom. The total extent of A schedule property is 2.2 cents and the property is a commercial site. The building therein has been constructed 60 years back and the plaintiff had purchased jenmam right in 1962. So it is to project that property the suit is filed. The plaintiff has subsequently stated that he is using the building and the site and it has been in the uninterrupted possession of the person from 1949 onwards. Unfortunately the State did not file any written statement at all. So in the absence of any written statement but in the presence of other materials, the : 2 : A.S.NO.23 OF 1998 court granted a decree in favour of the plaintiff. 2. Now when the appeal is taken for hearing, the learned Government Pleader requested the Court to give an opportunity to file a written statement to contest the case. This is the second round of litigation and the Government should have been more careful when demolition proceedings are initiated and when a suit is instituted to prevent the same, it was the responsibility of the Government to file a written statement projecting the contentions of the State. It is not done in this case and without a written statement this Court exercising the appellate jurisdiction also cannot decide the matter for the reason that there is only pleading of one side. 3. So though reluctant, I am inclined to grant an opportunity to the Government to file their written statement and let the matter be disposed of after framing the appropriate issues. But for the laches and negligence, I award a sum of Rs.3,000/= as costs which can be tacked on to the suit irrespective of the result of the case. 4. In the result, the appeal is allowed and the : 3 : A.S.NO.23 OF 1998 judgment and decree of the trial court are set aside and the matter is remitted back to the trial court with permission to the Government to file a written statement and permit both sides to produce documentary as well as oral evidence in support of their respective contentions and then decide matter in accordance with law. I make it very clear that in the light of the written statement if any application is found to be necessary, the plaintiff will be entitled to file the same as well. Parties are directed to appear before the court below on 6.12.2010. Steps be taken to dispose of the matter as early as possible. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : A.S.NO.23 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.23 OF 1998 ............................................. 1st day of November, 2010. J U D G M E N T