IN THE HIGH COURT OF KERALA AT ERNAKULAM
CMA.No. 40 of 2003()
1. MARY DAISY ANTONY, W/O.ANTONY, AGED
... Petitioner
2. ANTONY, S/O.CHEEKU, AGED 53 YEARS,
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. CHIEF ENGINEER, KERALA STATE
3. ASSISTANT EXECUTIVE ENGINEER,
4. ASSISTANT ENGINEER, KERALA STATE
5. NE VILLE D'COTHE, AGED 63 YEARS,
For Petitioner :SRI.P.F.THOMAS (SR.)
For Respondent :SRI. ASOK M.CHERIYAN, SC, KSEB
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :20/08/2008
O R D E R
M.N. KRISHNAN, J.
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C.M.A.NO. 40 OF 2003
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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
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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
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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.
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CMA 40 of 2003
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M.N. KRISHNAN, J.
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C.M.A. No. 40 OF 2003
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J U D G M E N T
20th August, 2008.