Partly allowed

Ramakrishnan v. Manikandan

Kerala HC14 Sept 2021FAO (RO)/31/2020

Case brief

AI extract

What is this about?

This court allowed the appeal in part, quashing a preliminary decree passed by the first appellate court in a suit for mandatory injunction where a remand order directed commission for ascertaining lateral support, ruling such decree was outside the prayer and ordered fresh consideration.

What did the court decide?

The preliminary decree passed by the First Appellate Court is removed and the matter is remanded for fresh consideration.

Ramakrishnan Vs Manikandan — Landlord and Tenant | Kerala HC (2021)

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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.SOMARAJAN

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TUESDAY, THE 14^th DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943

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FAO (RO) NO. 31 OF 2020

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AGAINST THE JUDGMENT DATED 24.07.2020 IN AS 45/2014 OF ADDITIONAL

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DISTRICT COURT, OTTAPALAM, PALAKKAD

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O.S.No.334 OF 2009 OF MUNSIFF COURT, OTTAPALAM

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APPELLANT/RESPONDENT/DEFENDANT:

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RAMAKRISHNAN, AGED 70 YEARS, S/o KALYANIKUTTY AMMA, RESIDING AT ATTEERI VEETTIL HOUSE, PALAPPURAM AMSOM DESOM, NOW RESIDING AT MOHAN NIVAS, VADAKKE PULLASERY, VADAKKUMANGALAM DESOM, LAKKIDI AMSOM, MANGALAM P. O., PALAKKAD DISTRICT - 679 301.

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BY ADVS. T.C.SURESH MENON SRI.P.S.APPU

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RESPONDENT/APPELLANT/PLAINTIFF

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MANIKANDAN, AGED 43 YEARS, S/o PANJAN @ KUTTAN, RESIDING AT APPAYIL KUNNTHU VEETTIL, PALAPPURAM AMSOM DESOM, OTTAPALAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER DEEPA, AGED 36 YEAR, W/o MANIKANDAN, APPAYIL KUNNATHU VEETIL, PALAPPURAM AMSOM DESOM, PALAPPURAM P. O., PALAKKAD DISTRICT - 679 103.

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BY ADV SRI.R.SREEHARI

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) No.31 of 2020

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JUDGMENT

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A suit for mandatory injunction was dismissed by the

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trial court, against which an appeal was preferred before the Additional District Court, Ottapalam, wherein the learned District Judge passed a preliminary decree and then remanded the matter back to the trial court for the purpose of issuance of a Commission so as to find out the extent of lateral support required by the party concerned. Aggrieved by the said decree and judgment of the First Appellate Court, the defendant came up in appeal.

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It is so unfortunate that a preliminary decree was passed by the First Appellate Court in a suit for mandatory

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injunction and issued an expert commission so as to ascertain the extent of lateral support required in order to protect the property of plaintiff. It is true that

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there is no substantial prayer in the suit with respect to the extent of lateral support required by the party and the

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suit was filed only for mandatory injunction. Hence, the

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FAO (RO) No.31 of 2020

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order of remand for incorporating substantial prayer in the suit cannot be interfered with. But the passing of preliminary decree by the First Appellate Court is really not within the sweep of a mandatory injunction sought by the party. Hence, the same cannot be permitted to be continued and will stand removed from the impugned order. There will be an open remand of all the matters involved in the suit for fresh consideration. The parties shall appear before the trial court on 06.10.2021.

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Appeal will stand allowed in part accordingly.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Ramakrishnan v. Manikandan

Case brief

What is this about?

What did the court decide?

Ramakrishnan v. Manikandan

Case brief

What is this about?

What did the court decide?

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