High Court Kerala High Court

K.V.Sreedharan vs The Chief Secretary on 24 June, 2009

Kerala High Court
K.V.Sreedharan vs The Chief Secretary on 24 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 136 of 2009()


1. K.V.SREEDHARAN,
                      ...  Petitioner
2. T.K.V.KUNHIKANNAN,
3. K.V.LAKSHMIKUTTY,

                        Vs



1. THE CHIEF SECRETARY,GOVERNMENT OF KERALA
                       ...       Respondent

2. THE SECRETARY TO THE GOVERNMENT,

3. THE DEPUTY DIRECTOR OF EDUCATION,

4. THE SECRETARY, KUNHIMANGALAM GRAMA

                For Petitioner  :SRI.SUNIL V.MOHAMMED

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :24/06/2009

 O R D E R
                       V. RAMKUMAR, J.
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                      F.A.O.No.136 of 2009
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             Dated this the 24th day of June, 2009

                           JUDGMENT

Heard both sides.

2. In this appeal filed under Order XLIII Rule 1 C.P.C, the

appellants who are the legal representatives of the plaintiff in

O.S.No.242 of 2009 on the file of the Munsiff’s Court, Payyannur

challenge the common order passed by the Subordinate Court,

Payyannur in I.A.No.477 of 2008 and 630 of 2009 in A.S.No.2 of

2005.

3. The aforesaid suit was one for recovery of possession on

the strength of title with arrears of rent in respect of the plaint

schedule property admeasuring 49< cents, wherein a

Government Lower Primary School is being run presently by the

4th defendant, Panchayat namely Kunhimangalam Grama

Panchayat. As per judgment and decree dated 30.9.04, the trial

court dismissed the suit. Aggrieved by the judgment and decree

passed by the trial court, the appellants preferred an appeal

before the Subordinate Court, Payyannur as A.S.No.2 of 2005.

Pending appeal, they filed I.A.No.1477/2008 for an interim

F.A.O.No.136 of 2009
2

injunction alleging that the Panchayat is demolishing the said

building and reconstructing the same. Initially the lower

appellate court granted an interim injunction as prayed for.

Subsequently, at the instance of the Panchayat which filed

I.A.No.568 of 2008, the interim injunction was modified allowing

the Panchayat to effect repairs to the buildings which were

stated to be under a high degree of dilapidation. Alleging that

under the guise of repairs, the panchayat is resorting to

demolition of the existing building, the appellant filed I.A.No.630

of 2009. The said application was resisted by the 4th defendant

contending, inter alia, that the work which was being done was

only to replace the wall made of mud bricks etc. so as to restore

that portion of the building to the original condition to avert any

collapse of the building where students were studying. The

lower appellate court as per impugned order, accepted the said

contention of the Grama Panchayat and dismissed I.A.No.1477 of

2008 as well as 630 of 2009. It is the said common order which

is assailed in this appeal by the legal representatives of the

plaintiff.

4. It is too early to consider the merits of the rival

contentions regarding the alleged demolition, re-construction

F.A.O.No.136 of 2009
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etc. of the buildings in the suit property. Suffice it to say that

the lower appellate court on the materials before it including the

report of the Commissioner was satisfied that the work already

done was only to avert the collapse of the building which has

reached a high degree of dilapidation. Such being the position it

cannot be said that the impugned order is unsustainable so as to

warrant admission of this appeal. As mentioned earlier, the suit

itself is for recovery of possession on the strength of title and the

appellants will have to concentrate on the appeal filed before the

lower appellate court pending as A.S.No.2 of 2005. Considering

the fact that the appeal is of the year 2005, interests of justice

require that the said appeal itself is disposed of expeditiously.

Accordingly, this appeal is dismissed with a direction to the Sub

Court, Payyannur to dispose of A.S.No.2 of 2005 expeditiously

and at any rate within a period of 8 months of the date of receipt

of a copy of this judgment.

Dated this the 24th day of June, 2009.

V. RAMKUMAR, JUDGE

sj