IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 23 of 1998()
1. STATE OF KERALA
... Petitioner
Vs
1. P.P.UMMER HAJI
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.C.KHALID
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/11/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.23 OF 1998
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Dated this the 1st day of November, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and
decree of the Subordinate Judge’s Court, Thalassery in
O.S.No.455/1995. The suit is one for permanent injunction.
It is the case of the plaintiff that the plaint A and B
schedule properties constitute two sites occupied by the
shop building belonging to the plaintiff. The plaint A
schedule property is comprised in R.Sy.No.25/4 and in
R.Sy.No.26 of Pazhassi amsom. The total extent of A schedule
property is 2.2 cents and the property is a commercial site.
The building therein has been constructed 60 years back
and the plaintiff had purchased jenmam right in 1962. So it
is to project that property the suit is filed. The plaintiff has
subsequently stated that he is using the building and the
site and it has been in the uninterrupted possession of the
person from 1949 onwards. Unfortunately the State did not
file any written statement at all. So in the absence of any
written statement but in the presence of other materials, the
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court granted a decree in favour of the plaintiff.
2. Now when the appeal is taken for hearing, the
learned Government Pleader requested the Court to give an
opportunity to file a written statement to contest the case.
This is the second round of litigation and the Government
should have been more careful when demolition proceedings
are initiated and when a suit is instituted to prevent the
same, it was the responsibility of the Government to file a
written statement projecting the contentions of the State. It
is not done in this case and without a written statement this
Court exercising the appellate jurisdiction also cannot decide
the matter for the reason that there is only pleading of one
side.
3. So though reluctant, I am inclined to grant an
opportunity to the Government to file their written statement
and let the matter be disposed of after framing the
appropriate issues. But for the laches and negligence, I
award a sum of Rs.3,000/= as costs which can be tacked
on to the suit irrespective of the result of the case.
4. In the result, the appeal is allowed and the
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judgment and decree of the trial court are set aside and the
matter is remitted back to the trial court with permission to
the Government to file a written statement and permit both
sides to produce documentary as well as oral evidence in
support of their respective contentions and then decide
matter in accordance with law. I make it very clear that in
the light of the written statement if any application is found
to be necessary, the plaintiff will be entitled to file the same
as well. Parties are directed to appear before the court
below on 6.12.2010. Steps be taken to dispose of the matter
as early as possible.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
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A.S.NO.23 OF 1998
………………………………………
1st day of November, 2010.
J U D G M E N T