IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 175 of 2008()
1. VADAKKEL THIRUMANGALATH NARAYANAN
... Petitioner
2. VADAKKEL THIRUMANGALATH SAROJINI AMMA
Vs
1. VADAKKEL THIRUMANGALATH VANAJA AMMA
... Respondent
2. VADAKKEL THIRUMANGALATH VALSALA AMMA
3. VADAKKEL THIRUMANGALAM SARADA AMMA
For Petitioner :SRI.B.KRISHNAN
For Respondent :SRI.K.P.SUDHEER
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :13/11/2008
O R D E R
M.N.KRISHNAN, J
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FAO No.175 OF 2008
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Dated this the 13th day of November 2008
JUDGMENT
This appeal is preferred against the judgment of the Sub Court,
Koyilandy in A.S.No.55 of 2006. The said appeal was preferred against the
judgment and decree of the Munsiff-Magistrate Court, Perambra in
O.S.No.7 of 2004.
2. The suit was one for injunction simplicitor and the trial court on a
consideration of the materials found that the plaintiffs have not succeeded in
proving possession over the disputed property and therefore dismissed the
suit. It is against that decision the appeal was filed. The substantial
questions of law formulated in the appeal memorandum are as follows:
(1)Whether the Lower Appellate Court was justified in
remitting the case to the Trial Court without finding that the
judgment of the Trial Court is erroneous in the context of the
judgment reported in 1988(2) KLT 957.
(2)Whether the Lower Appellate Court should have heard
the appeal along with the petition for leave to amend in the
context of the judgment reported in 1990(1) KLT 716.
(3)Whether the Lower Appellate Court was justified in
remitting the case to the Trial Court for considering relief of
mandatory injunction when it will have no effect on the
plaintiffs’ case whose possession is found against by the Trial
Court.
FAO 175/2008 -:2:-
Points 1 to 3.
3.During the pendency of the appeal, I.A.No.313 of 2008 was filed
for amendment of the plaint whereby plaintiffs wanted to incorporate a
prayer of mandatory injunction on the ground that defendants had
constructed a stone wall in the plaint schedule property and though the same
was brought to the notice of the court, the petitioners did not take any step
for amending the plaint and so at that stage they wanted to move an
application for amendment by incorporating a prayer for mandatory
injunction. The long and short of the whole matter depends upon the finding
on the question of possession of the property by the plaintiffs. If the
plaintiffs are able to establish that they were in possession of the property
on the date of institution of the suit and if there has been a subsequent
encroachment by construction of a wall, the hands of the court are wide
enough to give a direction to put back the plaintiffs into their original
possession by issuance of a mandatory injunction even with or without
prayer. But the crucial question to be adjudicated in the matter is regarding
possession of the plaintiffs over the plaint schedule property as contended
by them on the date of institution of the suit. The other is only a
subsequent development and the moulding of such a relief depends only
when it is established that the plaintiffs are able to get the main relief. So
FAO 175/2008 -:3:-
the appropriate method for deciding the issue was to consider the
amendment application along with the appeal and if the court was
convinced about the plaintiffs’ possession then certainly it should have
entertained the amendment application then passed an order and if
additional particulars are necessary to remand the matter for adjudication.
But, unfortunately in this case without considering the pivotal issue the
court had put the cart before the horse and proceeded to decide the matter
that it requires a remand since the amendment application is allowed. Such
procedure done by the court below is erroneous which requires correction.
The proper remedy for the plaintiffs is to address the case in appeal and if
the court finds that the judgment of the trial court requires reversal then
necessarily subsequent prayer also has to be entertained.
Therefore, the judgment of the Sub Judge, Quilandy is set aside and
the learned Sub Judge is directed to consider the appeal afresh and he must
also restore the application for amendment, hear them jointly, consider the
question of possession and along with it also the prayer for amendment and
pass appropriate orders or directions as the case may be. Appeal is disposed
of accordingly.
If the records are already transmitted to the Munsiff’s Court let it be
recalled and the matter be disposed of. The Sub Judge shall try to dispose of
FAO 175/2008 -:4:-
the matter as expeditiously as possible, at any rate, within 3 months from the
date of first appearance of the parties which is fixed as 18.12.2008.
FAO is disposed of as above.
M.N.KRISHNAN, JUDGE
Cdp/-