IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 CMA.No. 40 of 2003 --------------------------- AS. NO.125/2001 OF PRINCIPAL SUB COURT,KOCHI, OS.NO. 670/1997 OF ADDL.MUNSIFF COURT,KOCHI. .................... APPELLANTS/ RESPONDENTS/ PLAINTIFFS 1 & 2: ----------------------------------------------------------------------- 1. MARY DAISY ANTONY, W/O.ANTONY, AGED 42 YEARS, RESIDING IN BUILDING NO.CC XIV/256 A, KAZHUTHUMUTTU, THOPPUMPADY VILLAGE, KOCHI-5. 2. ANTONY, S/O.CHEEKU, AGED 53 YEARS, C.C.NO.XVI/256 A, .. DO.. DO.. BY ADV. SRI.P.F.THOMAS (SR.), SMT.A.K.RANI, SRI.RAYMOND FERNANDEZ, SRI.GOPAKUMAR.G., SRI.SHIJU VARGHEESE. RESPONDENTS/ APPELLANTS/ DEFENDANTS/ 3RD PLAINTIFF: ------------------------------------------------------------------------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, KERALA STATE ELECTRICITY BOARD, VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM. 3. ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, TRANSMISSION DIVISION, 110 K.V. SUB STATION, MATTANCHERRY, KAZHUTHUMUTTU, THOPPUMPADY, KOCHI - 5. C.M.A. NO. 40/2003: 4. ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, TRANSMISSION DIVISION, 110 K.V. SUB STATION, KOCHI-5. 5. NE VILLE D'COTHE, AGED 63 YEARS, C.C.NO.XVI/255, NIBRARY, KAZHUTHUMUTTU, THOPPUMPADY, KOCHI-5. ADV. SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1 TO R4. THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.A. NO. 40/2003: ORDER ON C.M.P. NO. 884/2003 IN C.M.A. NO. 40/2003 DISMISSED 20/08/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = C.M.A.NO. 40 OF 2003 = = = = = = = = = = = = = = = Dated this the 20th day of August, 2008. J U D G M E N T This appeal is preferred against the judgment of the Subordinate Judge, Kochi in A.S.125/01. The suit is for a permanent prohibitory and mandatory injunction. The Court on consideration of the entire materials decreed the suit granting a permanent prohibitory injunction restraining the defendants and their subordinates from drawing electric line above the plaint schedule building and charging the lines with electric energy. There was a direction to dismantle the electric lines also. Against that decision the K.S.E.B. preferred the appeal before the Subordinate Judge's Court. At the time of hearing the appeal the K.S.E.B. produced three documents and an affidavit with a request to consider the same in the appeal. In paragraph 7 of the judgment the appellate court held that the three documents are relevant for the case. In the affidavit filed by the 3rd appellant before that Court it is stated CMA 40 of 2003 -2- that as per Rule 83(1)(b) of the Indian Electricity Rules 1956 a vertical clearance of 4.60 meters has to be maintained from the top of the building to the electric lines. But at that time the height was only 3.38 meters. An affidavit is filed to the effect that the Board has increased the height of the tower and had provided a vertical clearance of 7.2 meters from the building of the respondents. But the correctness of the same was not admitted by the plaintiff in the case. So, in order to enable the Board to prove those three documents and also the factum of raising the height of the electric line, the appellate Court found that the matter requires reconsideration and therefore set aside the judgment and decree of the trial court and remanded the matter for fresh disposal. I feel, on account of the subsequent developments it had gone to the root of the matter and the matter really requires reconsideration by the trial Court. It was under those circumstances the appellate court felt that the matter has to be further probed into by the CMA 40 of 2003 -3- trial court. Therefore I do not find any mistake in the order of remand and therefore the appeal lacks merit and it is dismissed. I direct all the parties to appear before the Court below on 6.10.08. M.N. KRISHNAN, JUDGE. ul/- CMA 40 of 2003 -4- M.N. KRISHNAN, J. = = = = = = = = = = C.M.A. No. 40 OF 2003 = = = = = = = = = = = J U D G M E N T 20th August, 2008.