Dismissed

A.Sivadasan v. P.P.Dileep Kumar

Kerala HC23 Jul 2008CRP/567/2008

Case brief

AI extract

What is this about?

Full Bench of the Kerala High Court dismissed a Civil Revision Petition against an order upholding respondent's Action. The Court held that a revision under Section 115 CPC does not lie against an interlocutory order under Order XLIIII Rule 1 CPC, though it clarified that the trial court must expedite the suit.

What did the court decide?

Trial court directed to dispose of the suit expeditiously.

A.Sivadasan Vs P.P.Dileep Kumar — Civil Procedure and Limitation | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930

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CRP.No. 567 of 2008()

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CMA.Nos.72 & 73/2004 of ADDL.DISTRICT COURT (ADHOC)-III, THALASSERY

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REVN. PETITIONER:

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A. SIVADASAN, S/O.RAMAN, AGED 54 YEARS, BUSINESS RESIDING AT 'THAYYIL HOUSE', PAZHASSI AMSOM, MATTANNUR DESOM, MATTANNUR P.O., THALASSERY TALUK KANNUR DISTRICT.

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BY ADV. SRI.R.SURENDRAN

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RESPONDENTS:

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P.P. DILEEP KUMAR, S/O.ACHUTHAN, AGED 39 YEARS, PROPRIETOR, HOTEL VRINDA, P.O. MATTANNUR, THALASSERY TALUK, KANNUR DISTRICT.

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KERALA WATER AUTHORITY REPRESENTED BY THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, MATTANNUR, KANNUR DISTRICT.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.SASIDHARAN NAMBIAR, J.

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C.R.P.No.567 of 2008

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Dated this the 23^rd July, 2008.

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O R D E R

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Petitioner is the plaintiff in O.S.No.108 of 2004, on the file of Munsiff Court, Kuthuparamba. Respondents are the defendants. I.A.No.866 of 2004 was filed under Order XXXIX Rule 1 of Code of Civil Procedure for an order of temporary injunction restraining respondents from constructing the proposed water tank and other permanent structure contending that it would cause nuisance to the petitioner, as per order dated, 18.6.2004. First respondent challenged that order before Additional District Court, Thalassery, in C.M.A.No.72 of 2004, and second respondent in C.M.A.No.73 of 2004. Learned Additional District Judge, on re-appreciation of the materials, as per order dated 31.10.2007, set aside the order of learned Munsiff, finding that petitioner did not establish a prima facie case and balance of convenience is not in his favour and allowed the CMAs and directed the

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trial court to proceed with the suit. Against that order, this revision petition is filed under Section 115 of Code of Civil Procedure.

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C.R.P.no.567 of 2008

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The learned counsel appearing for the revision petitioner vehemently argued that learned District Judge was not justified in acting upon a certificate issued by the Village Officer, which does not show even the extent of the property and in the circumstances of the case, the order of injunction granted by learned Munsiff should not have been interfered with.

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The order challenged is an order passed in an appeal filed against an interlocutory order, as provided under Order XLIIII of Rule 1 of Code of Civil Procedure. As settled by this Court, no revision petition under Section 115 of Code of Civil Procedure will lie against that order. The learned counsel appearing for the petitioner then submitted that petition may be treated as one filed under Article 227 of Constitution of India. Even if petition is treated as one under Article 227 of the Constitution of India, I do not find any reason to interfere with the order passed by Additional District Judge, Thalassery. That order was passed as early as 31.10.2007. For more than about 8 months, there was no order in favour of the petitioner, after the order of temporary injunction granted by the Munsiff was set aside by the Additional District Judge. In such circumstances, learned Munsiff is directed to dispose the suit, as expeditiously as possible,

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C.R.P.no.567 of 2008

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untrammelled by any observations in the judgment of the CMAs by the Additional District Judge. Revision Petition is dismissed.

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M.SASIDHARAN NAMBIAR, JUDGE

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nj.

A.Sivadasan v. P.P.Dileep Kumar

Case brief

What is this about?

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A.Sivadasan v. P.P.Dileep Kumar

Case brief

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