IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 524 of 2008()
1. BHARAT SANCHAR NIGAM LIMITED,
... Petitioner
Vs
1. VISWAMBHARAN, USHA NIVAS, KIDANGIL VEEDU
... Respondent
2. PRASSANNAN, TOP INDIAN HARDWARE SHOP,
For Petitioner :SRI.C.S.RAMANATHAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :31/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRP.No. 524 OF 2008
............................................
DATED THIS THE 31st DAY OF JULY, 2008
ORDER
Petitioner is first defendant. First respondent is the plaintiff
and second respondent, the second defendant. Suit was filed for
permanent prohibitory injunction restraining defendants from
constructing a tower on the top of the shop room of second
respondent. I.A.3703 of 2007 was filed for an order of temporary
injunction. It was originally granted by the learned Munsiff.
Petitioner filed WP(C) 8716 of 2008 before Munsiff court, which
was disposed on 14.3.2008 setting aside the order of injunction
and directing Munsiff to consider the maintainability of the suit.
Petitioner thereafter filed I.A.1276 of 2008 for hearing the
question of maintainability of the suit as directed by this court in
WP(C) 8716 of 2008. That petition was dismissed by learned
Munsiff as per order dated 8.4.2008. This petition is filed
challenging that order.
2. Learned counsel appearing for petitioner was heard.
Though notice was served on the respondents, they did not
appear or dispute the case of petitioner raised in the revision.
3. The argument of learned counsel is that learned Munsiff
CRP 524/2008 2
was not justified in considering the objection with regard to the
construction of the tower on the other ground which was not
pleaded in the plaint. It was pointed out that the action of
erecting a tower was challenged in the plaint only on the ground
that if the tower is placed in a thickly populated area, it is
dangerous to the health of the public. There was no case in the
plaint that the tower is proposed to be installed on a weak
building without sufficient or strong foundation and therefore it
may fall causing damage. What was found by the Munsiff in the
impugned order was that if tower is erected in a building which
is not strong enough, it will not withstand the weight and
therefore there is a chance of collapsing which would be danger
to the public. As such a case was not pleaded, the impugned
order passed by learned Munsiff is set aside. Learned Munsiff is
directed to rehear the question of maintainability of the suit and
decide whether suit is maintainable, hear the parties and pass
appropriate orders in accordance with law.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-