IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 SA.No. 812 of 1997() -------------------- AS.162/1994 of SUB COURT,NEYYATTINKARA OS.407/1992 of 1 ADDL. MUNSIFF COURT,NEYYATINKARA .................... APPELLANT/APPELLANT/LR OF THE PLAINTIFF: --------------------------------------------------- PADMAVATHY, W/O.KUTTY RAGHAVAN, AGED 62, RESIDING AT PALAZHI, PUNNAKULAM, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADV. MR.G.S.REGHUNATH RESPONDENTS/RESPONDENTS 1 & 2/RESPONDENTS 1 & 2: ----------------------------------------------------------------- 1. BHASKARAN, S/O.VELAYUDHAN, AGED 30, RESIDING AT KUZHIVILAKONAM, PALINELVILAKATHU VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. 2. VILLAGE INDUSTRIES CO-OPERATIVE SOCIETY NO.KVCND(T) 112, REPRESENTED BY VELAYUTHAN, SECRETARY. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.812 Of 1997 ---------------------- Dated this the 27th day of July, 2010. J U D G M E N T The plaintiff in O.S.No.407 of 1992 on the file of the First Additional Munsiff Court, Neyyattinkara is the appellant. The appeal is directed against the decree and judgment in A.S.No.162 of 1994 on the file of the Sub Court, Neyyattinkara. The suit was filed for permanent injunction restraining the defendant from trespassing into the plaint schedule property, from constructing new boundaries, from committing waste and from constructing buildings. The trial court dismissed the suit and was confirmed in appeal. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The suit was filed originally against the first defendant. Though the first defendant filed a written statement denying the plaintiff’s possession and disputing the identity of the plaint schedule property, subsequently he had withdrawn his contentions. On the basis of the averments in the written statement, plaintiff impleaded the second defendant, co- operative society. The second defendant remained ex-parte. The S.A.No.812 Of 1997 ::2:: suit was listed for trial on 11.6.1993. No oral evidence was adduced from the plaintiff’s side. The plaintiff produced Exts.A1 and A2. Since the plaintiff has not gone to the box and swear on oath, the trial court held that the plaintiff failed to prove possession. The trial court dismissed the suit. 3. In the memorandum of appeal the appellant has stated that when the case came up in the list the first defendant withdrawn his contentions. The original plaintiff was laid up from 11.6.1993. He was suffering from cancer and it is further stated that he died on 21.7.1993. It is further stated that as the first defendant had withdrawn all his contentions and second defendant remained ex-parte, the plaintiff’s advocate believed that the documents produced in the case are sufficient to prove the case. Accordingly, the documents were marked on the plaintiff’s side and the case was taken up for judgment. Learned counsel for the appellant submitted that the trial court instead of passing a decree as prayed for, strangely dismissed the suit. The legatee under the will executed by the plaintiff, who is the wife of the plaintiff, filed the appeal. In the appellate court she produced S.A.No.812 Of 1997 ::3:: medical certificate certifying that the original plaintiff was admitted in the hospital on 11.6.1993 and he was diagnosed as suffering from cancer and died on 21.7.1993. It is further submitted that the appeal was dismissed on the sole ground that the plaintiff has not produced any evidence to prove his case and cause of action for filing the suit. 4. The plaintiff’s case is that he obtained title and possession over the plaint schedule property having an extent of 48 cents in survey No.248/3B of Kottukal village as per Ext.A1 partition deed dated 20.12.1979. He also produced Ext.A2 tax receipt proving payment of land tax. It is averred in the paint that the defendant has no manner of right over the plaint schedule property and he is trying to trespass in to the property and to construct a building therein. Stating the very same reasons the lower appellate court dismissed the appeal. The lower appellate court observed that the plaintiff who approached the court claiming relief is duty bound to prove his case by adducing evidence. In a suit for injunction simplicitor it is the bounden duty of the plaintiff to prove his possession, the S.A.No.812 Of 1997 ::4:: allegations of attempted trespass and apprehension of committing trespass. It is also observed that it is very important to prove the identity of the plaint schedule property. The trial court also observed that the plaintiff has not sworn in support of the plaint allegations of attempted trespass or possession and that no relief is claimed in the plaint as against the additional second defendant and no cause of action alleged as against the additional second defendant there is no necessity for the additional defendant to deny the plaint allegations. It was further held that the absence of contentions on the defendants’ side cannot be taken as admission of the plaint allegations and it is the duty of the plaintiff to prove the plaint allegations. Considering the above said facts, the lower appellate court confirmed the decree passed by the trial court. 5. Considering the facts and circumstances of the case, this Court is of the view that the lower appellate court after taking into account what transpired before the trial court ought to have set aside the decree and judgment of the trial court and should have remanded the case for giving an opportunity to the S.A.No.812 Of 1997 ::5:: plaintiff to swear in terms of the plaint. This is a case where the first defendant withdrawn all his contentions and the second defendant remained ex-parte. If the evidence adduced by the plaintiff is not sufficient to prove the possession of the plaintiff, the lower appellate court ought to have granted an opportunity to the plaintiff to substantiate his case. The very fact that the original plaintiff was laid up from 11.6.1993 and died on 21.7.1993 due to cancer should also have been taken note of while dismissing the appeal. The very fact that he was laid up from 11.6.1993 and died on 21.7.1993 due to cancer would show that the plaintiff was prevented from attending the court on the dates when the case was listed for trial. The case was heard on 16.7.1993 and the judgment was pronounced on the same day. During that time the plaintiff was in hospital. The appellant in A.S.162 of 1994 produced the medical certificate before that court certifying that the deceased plaintiff was admitted in the hospital on 11.6.1993 and due to cancer he was under treatment and he died on 21.7.1993. The lower appellate court without considering the said facts decided the case on merits on the basis S.A.No.812 Of 1997 ::6:: of materials available. The court should have uphold the submissions of the counsel for the appellant that since the plaintiff was laid up and was unable to attend the trial court, the suit should have been remanded granting an opportunity to the appellant to substantiate the contentions pleaded in the plaint. The lower appellate court noted the fact that the plaintiff did not claim any relief in the plaint as against the additional defendant and no cause of action is alleged against the additional defendant. The plaintiff shall be granted an opportunity to amend the plaint so as to incorporate necessary pleadings as against the additional second defendant, if so advised. In the result, the appeal is allowed. The decree and judgment passed by the courts below are set aside. The trial court shall dispose of the suit within a period of six months from the date of receipt of a copy o this judgment. The appellant shall appear before the trial court on 31.8.2010. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-