Dismissed

Kanhangad Municipality v. Pullayikodi Illath Khadeeja

Kerala HC6 Jan 2016RSA/1375/2015

Case brief

AI extract

What is this about?

This regular second appeal challenged a modification of the decree by the appellate court which directed the appellant municipality to restore a schedule property to its original position. The High Court of Kerala held that under Order 33 Rule 41 CPC, the appellate court was justified in granting this incidental relief to ensure complete justice, especially since the property was found to be part

What did the court decide?

The second appeal was dismissed, affirming the appellate court's decree directing the appellant to restore the schedule property to its original position.

Kanhangad Municipality Vs Pullayikodi Illath Khadeeja — Landlord and Tenant | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

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RSA.No. 1375 of 2015 (E)

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(AGAINST THE JUDGMENT AND DECREE IN AS.NO. 1/2010 OF SUB COURT, HOSDURG DATED 16-12-2014)

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(AGAINST THE JUDGMENT AND DECREE IN OS.NO. 397/2005 OF MUNSIFF COURT, HOSDURG DATED 26-11-2009)

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----------------

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APPELLANT/APPELLANT/1ST DEFENDANT:

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KANHANGAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KANHANGAD, HOSDURG VILLAGE, HOSDURG TALUK, P.O KANHANGAD, KASARAGOD DISTRICT, PIN- 671 315

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BY ADV. SRI.T.K.VIPINDAS

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RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT:

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1. PULLAYIKODI ILLATH KHADEEJA, AGED 54 YEARS, W/O.LATE AMMANATH, RESIDING AT AVANGADI, KANHANGAD VILLAGE, HOSDURG, NOW RESIDING AT V.P.ROAD, CHITTARI VILLAGE, HOSDURG TALUK, P.O CHITTARI -671 317

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2. T. THAMBAN, AGED 52 YEARS, S/O.LATE MADHURAMBADI BAYAKKODAN AMBUNHI, RESIDING AT MADHURAMBADI , PULLUR VILLAGE, HOSDURG TALUK-671 318, POST HARIPURAM.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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C.R.

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P.B.SURESH KUMAR, J.

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R.S.A. No.1375 of 2015

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Dated 6^th January, 2016.

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J U D G M E N T

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The first defendant in the suit is the appellant.

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The plaint A schedule property measuring 15

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cents has been obtained by the plaintiff as per Ext.A1 assignment deed. The plaint B schedule property is a portion of the plaint A schedule property. The case of the plaintiff is that the first defendant Municipality has encroached on the plaint B schedule property and formed a road through the same. The second defendant is the contractor engaged by the first defendant for the purpose of forming the said road. The suit was, therefore, filed seeking a decree directing the defendants to surrender the plaint B schedule property to the plaintiff. The first defendant resisted the suit, contending that the plaint B schedule property is not part of the plaint A schedule property owned by the plaintiff. According to the first defendant, the

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RSA 1375 of 2015

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plaint B schedule property is owned by one Padmanabhan and the road was formed after obtaining the consent of Padmanabhan. It was also contended by the first defendant that the construction of the road has been completed. The trial court found that the plaint B schedule property is part of the plaint A schedule property. Consequently, the suit was decreed, directing the first defendant to surrender the plaint B schedule property to the plaintiff. The trial court, however, did not direct the first defendant to restore the plaint B schedule property to its original position for the reason that the plaintiff has not claimed such a relief in the suit. The plaintiff did not challenge the decision of the trial court in appeal. The first defendant challenged the decision of the trial court in appeal. The appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court and dismissed the appeal. However, while dismissing the appeal, the appellate court found that the plaintiff was entitled to a decree of mandatory injunction directing the first defendant to restore the plaint B schedule property to its original position also and

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RSA 1375 of 2015

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consequently, modified the decree passed by the trial court, granting the plaintiff a decree directing the first defendant to restore the plaint B schedule property to its original position. Aggrieved by the concurrent decisions of the courts below, the first defendant has come up in this second appeal.

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Heard the learned counsel for the appellant.

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The learned counsel for the appellant contended

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that in so far as there was no prayer in the suit for a mandatory injunction directing the first defendant to restore the plaint B schedule property to its original position, the appellate court was not justified in granting the said relief to the plaintiff, especially when the plaintiff has not preferred an appeal, or a cross objection in the appeal preferred by the first defendant seeking the said relief.

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It is trite that the court is entitled to mould reliefs to be granted to the parties in a suit and it has the power to grant reliefs which are not sought by the parties also, having regard to the facts and circumstances of the case. Further, the relief now granted by the appellate court is a relief which is

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RSA 1375 of 2015

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incidental to the relief of recovery of possession/ mandatory injunction sought by the plaintiff. As indicated above, the contention is that in the absence of any appeal by the plaintiff or cross objection in the appeal preferred by the first defendant, the appellate court should not have modified the decree in favour of the plaintiff. Rule 33 of Order 41 of the Code of Civil Procedure ('the Code' for short) reads thus :

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“33. Power of Court of Appeal -- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

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Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”

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RSA 1375 of 2015

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Rule 33 of Order 41 of the Code confers power on the appellate court to pass any decree and make any order which ought to have been passed or made or make such further or other decree or order as the case may require, notwithstanding that the appeal is as to part only of the decree, in favour of all or any of the parties, although such parties may not have filed any appeal or cross objection. The policy of this rule is to enable the appellate court to do complete justice to the parties. The necessary condition for exercising the power under Rule 33 of Order 41 is that the parties to the proceeding shall be before the court and the question raised properly arises for consideration. In that event, the appellate court could consider any objection to any part of the order or decree of the court and set it right. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41 Rule 33 of the Code and each case must depend upon its own facts. The rule enables the appellate court to pass any order/decree which ought to have been passed. Ordinarily the appellate court must not vary or reverse a decree/order in

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RSA 1375 of 2015

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favour of a party who has not preferred any appeal and this principle holds good notwithstanding Order 41 Rule 33 of the Code. However, in exceptional cases the rule enables the appellate court to pass such decree or order which ought to have been passed even if such decree would be in favour of a party who has not filed any appeal. The power, though discretionary, should not be declined to be exercised merely on the ground that the party has not filed any appeal (See K. Muthuswami Gounder v. N. Palaniappa Gounder (1998) 7 SCC 327). In the light of Rule 33 of Order 41 of the Code, the appellate court was perfectly justified in modifying the decree in favour of the plaintiff. There is, therefore, no merit in the second appeal and the same is, accordingly, dismissed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Kanhangad Municipality v. Pullayikodi Illath Khadeeja

Case brief

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Kanhangad Municipality v. Pullayikodi Illath Khadeeja

Case brief

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