Petitioner challenged orders directing respondent to construct a public drain per a Lok Adalat award. Court found that completing the drain might violate an existing decree in another suit by a third party. Petitioner allowed; orders set aside for fresh consideration with notice to the third party.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934
OP(C).No. 48 of 2013 (O)
EA NO.706/2012 IN EP.262/2011 of MUNSIFF COURT, HOSDRUG
PETITIONER(S):
K.V. KUNHAMBU, S/O.KANNAN NAIR,AGED 77 YEARS 'USHAS', KANHANGAD SOUTH P.O.KANHANGAD SOUTH, KASARAGOD-671315.
BY ADV. SRI.MAHESH V RAMAKRISHNAN
RESPONDENT(S):
THE SECRETARY, KANHANGAD MUNICIPALITY, P.O.KANHANGAD, KASARAGOD PIN-671315.
BY SRI.T.K. VIPINDAS
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO.48/2013
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 TRUE COPY OF THE AWARD DATED 17.09.2006 OF THE DISTRICT LEGAL SERVICES AUTHORITY, KASARAGOD IN CRL.RP NO.50/2004 AND LAC NO.558/2006
EXT.P2 TRUE COPY OF E.P.NO.262/2011 ON THE FILE OF MUNSIFF COURT, HOSDURG
EXT.P3 TRUE COPY OF THE COUNTER STATEMENT DATED 4.8.2012 FILED BY THE RESPONDENT HEREIN IN EP NO.262/2011
EXT.P4 TRUE COPY OF THE ORDER DATED 18.10.2012 IN EP NO.262/2011 OF THE MUNSIFF COURT, HOSDURG
EXT.P5 TRUE COPY OF THE EA NO.706/2012 IN EP NO.262/2011
EXT.P6 TRUE COPY OF THE COUNTER STATEMENT DATED 29.11.2012 FILED BY THE RESPONDENT IN EA NO.706/2012
EXT.P7 TRUE COPY OF THE ORDER DATED 6.12.2012 OF MUNSIFF COURT, HOSDURG IN EA NO.706/2012
RESPONDENT'S EXHIBITS:
NIL
//TRUE COPY//
P.S. TO JUDGE
THOMAS P.JOSEPH, J.
====================================
O.P(C) No.48 of 2013
====================================
Dated this the 07th day of February, 2013
J U D G M E N T
Petitioner/decree holder challenges Ext.P7, order and Ext.P4, order to the extent it gave certain directions to the petitioner.
O.P(C) No.48 of 2013
-: 2 :-
directed the respondent to complete work as per terms of Ext.P1, award within thirty days and permitted petitioner to do so in case respondent failed in carrying out the work. Petitioner was also permitted to realize expenses that may be incurred in the matter. Petitioner filed E.A. No.706 of 2012 to review Ext.P4, order. That application was dismissed by Ext.P7, order. Thus challenge to Ext.P7, order and that part of Ext.P4, order allowing petitioner to carry out the work in case the respondent failed to do the same.
O.P(C) No.48 of 2013
-: 3 :-
direction in Ext.P1 award is carried out by the respondent, respondent would be called upon to answer violation of decree in O.S. No.505 of 2007. Learned counsel expressed the inability of respondent to comply with the direction in Ext.P1, award.
The Original Petition is allowed as under: (i) Exhibit P7, order dated 06.12.2012 on E.A. No.706
O.P(C) No.48 of 2013
-: 4 :-
of 2012 in E.P. No.262 of 2011 of the Munsiff's Court, Hosdurg is set aside.
(ii) E.A. No.706 of 2012 will stand allowed.
(iii) Exhibit P4, order dated 18.10.2012 on E.P. No.262
of 2011 in its entirety is set aside.
(iv) Learned Munsiff is directed to reconsider the question in the light of observations made above and if necessary after hearing the plaintiffs in O.S. No.505 of 2007 as well.
THOMAS P. JOSEPH, JUDGE.
vsv
1 issue framed by the court
Whether the Respondent can be directed to construct a drain as per an award when it requires encroaching on property of a third party holding a prohibitory injunction.
K.V. Kunhambu
The Secretary, Kanhangad Municipality
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
