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
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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
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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