IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 FAO.No. 121 of 2009() --------------------- AGAINST THE ORDER DATED 07/04/2009 IN IA 2024/09 IN I.A. NO. 7929/08 IN POP.70/2008 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PETITIONER/RESPONDENT:- ---------------------------------------------- KURIAKOSE, S/O. LONAPPAN, AGED 40 YEARS, PASTOR, CHAKKRAMAKKIL HOUSE, PALUVAI DESOM, CHAVAKKAD AMSOM, THRISSUR TALUK. BY ADV. MR. T.I.DANIEL RESPONDENTS/PETITIONERS/RESPONDENTS:- ---------------------------------------------------- 1. ANTO, S/O. THOMAS, CHAKKRAMAKKIL, PALUVAI DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. JOSE, S/O. THOMAS, CHAKKRAMAKKIL, KOTTAPPADY, PUNNATHUR ROAD, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. SINI, W/O. ANTO, CHAKKRAMAKKIL, PALUVAI DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 4. MOLY, W/O. JOSE, CHAKKRAMAKKIL, KOTTAPPADY, PUNNATHUR ROAD, CHAVAKKAD TALUK, THRISSUR DISTRICT. 5. RADHA, W/O. REGHUNANDANAN, VADAKKEPPATTU VARIYATH HOUSE, THIRUVENKITAM DESOM, (P.O. GURUVAYOOR), CHAVAKKAD TALUK AND AMSOM, THRISSUR DISTRICT. F.A.O. No. 121/2009 : 2 : 6. MINI, W/O. MANIKANDAN, MOZHAYATH HOUSE, KARAKKAD DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. ADV. MR. N.J.JOHNSON FOR R1 & R3 MR. T.K.ASOKAN FOR R1 & R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: F.A.O. No. 121/2009 : 3 : ORDER ON I.A. NO. 1763/2009 IN F.A.O. NO. 121/2009 DISMISSED 23.06.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ========================== F.A.O. No. 121 of 2009 ========================== Dated this the 23rd day of June, 2009. JUDGMENT Heard both sides. 2. This appeal is directed against Annexure 14 order dated 07.04.2009 passed by the trial court, namely the First Additional Sub Judge, Thrissur accepting the undertaking filed by defendants 1 and 3 to the effect that in the event of a decree being passed in favour of the appellant/plaintiff, they are prepared to demolish the construction of the building objected to by the plaintiff. The learned Sub Judge accepted the undertaking filed as per I.A. No. 2024 of 2009 and closed the application for interim injunction filed as I.A. No.7929 of 2008. 3. The suit filed by the appellant is one informa pauperis. According to the appellant/plaintiff, the offending construction of the house in question is inside the property belonging to the plaintiff. Admittedly, the building is constructed by defendants 1 and 3 and not by the other defendants. The learned counsel appearing for the other defendants submitted that they are not F.A.O. No. 121/2009 : 2: constructing any building in the disputed property and that they do not have any intention to construct the building thereon. 4. Since this Court indicated to the counsel that the affidavit filed by defendants 1 and 3 before the trial court was not sufficient, they have filed a better affidavit dated 22.06.2009 before this Court. As per the said affidavit, they have undertaken that in the event of the appellant/plaintiff getting a decree in his favour, defendants 1 and 3 will demolish the entire house at their cost and that they will not claim any equities in that regard. The learned counsel appearing for the appellant/plaintiff, placing reliance on the decision reported in Maharwal Khewaji Trust (Reg.) Faribkot v. Baldev Dass (AIR 2005 SC 104) submitted that such an undertaking should not be accepted and defendants 1 and 3 should not be permitted to alter the state of affairs in the plaint schedule property. Having regard to the fact that the ground floor of the building is already over and the first floor of the building is being constructed after availing huge amounts by way of loan, I am of the view that the undertaking now given by defendants 1 and 3 would suffice to adjust the equities. F.A.O. No. 121/2009 : 3: Accordingly, I.A. No. 7929 of 2008 filed by the appellant/plaintiff before the trial court will stand closed accepting the additional undertaking filed before this Court by defendants 1 and 3 which reads as follows:- “We hereby undertake that in the event of the appellant/plaintiff gets a decree in his favour we will demolish the entire house at our cost which is being constructed in the suit scheduled property. We further undertake that we will also not claim any equities in this regard.”. Recording the said undertaking, this appeal is disposed of. Dated this the 23rd day of June, 2009. V. RAMKUMAR, JUDGE. rv F.A.O. No. 121/2009 : 4: