Appeal against dismissal of suit for injunction and damages regarding excavation and lack of lateral support. This court held dismissal unsustainable as plaintiff was denied chance to fix boundary. Case remanded for fresh disposal.
Travel court dismissal set aside; case remanded for fresh disposal and amendments allowed.
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 P.SOMARAJAN
MONDAY, THE 25th DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943
RFA NO. 563 OF 2007 (C)
AGAINST THE JUDGMENT AND DECREE DATED 31.10.2006 IN OS 269/2002 OF ADDITIONAL SUB COURT, NORTH PARAVUR, ERNAKULAM
APPELLANT IN RFA/PLAINTIFF IN SUIT:
1 VALLIYAMMAL, (DIED, LEGAL REPRESENTATIVE IMPLEADED) THANTHRI, W/o KAVALAN, KAKKADAMPILLY, MOLATH, EDATHALA KARA, ALUVA VILLAGE, ALUVA TALUK.
ADDITIONAL APPELLANT 2 IMPLEADED
ADDL.A2 VELAYUDHAN, AGED 48 YEARS, S/o KUNHAYYAN, RESIDING AT SREE SUHBRAMANIA SWAMY ASHRAM, EDATHALA NORTH POST, ALUVA – 683561
THE LEGAL REPRESENTATIVE OF THE SOLE APPELLANT IS IMPLEADED AS ADDITIONAL APPELLANT 2 VIDE ORDER DATED 5/9/19 IN IA 1262/13.
BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SMT.GEETHA P.MENON SRI.N.AJITH
RESPONDENT IN RFA/DEFENDANT IN SUIT:
HABEEB, S/o KHADER, RESIDING AT MEZHUKATTIL HOUSE, EDATHALA KARA, ALUVA EAST VILLAGE, EDATHALA P.O., ERNAKULAM DISTRICT.
BY ADVS. SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.V.RAJENDRAN PERUMBAVOOR
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 25.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA No.563 of 2007
2
JUDGMENT
'A' and 'B' schedules are the properties respectively
owned and possessed by the plaintiff and defendant. The allegation in the plaint is with respect to the excavation conducted in the 'B' schedule property without leaving
sufficient lateral support to the property, the 'A'
schedule. Hence, the suit for injunction and damages. Two commissions were earlier issued, who, in turn, filed a
report and rough sketch showing the necessity of having
sufficient lateral support to protect 'A' schedule. This
court has also issued a commission, who, in turn, filed a report stating the fall of portions of property to the
extent of 15.8ms in length. This would show the requirement of proper lateral support. Inter alia, it is contended by
the counsel for the respondent that there is no separating
boundary between the properties and without fixing the boundary, the entitlement of lateral support cannot be
decided. A structural engineer was employed along with the
commissioner who prepared Ext.C2 report showing the
RFA No.563 of 2007 3
requirement of lateral support by assessing the cost of plastering, reconstruction and cost of retaining lateral support. But the suit was dismissed by the trial court on the simple reason that the property was not identified. The expression 'not identifiable' shall not be misunderstood with boundary dispute, if any. If there is no existing boundary, the court below ought to have granted sufficient opportunity to amend the plaint by incorporating the relief of fixation of boundary and other necessary reliefs. The trial court, on the other hand, dismissed the amendment application submitted by the plaintiff which really amounts to curtailing the valuable right of plaintiff over the property. Hence, the decree and judgment of the trial court cannot be sustained. The same is set aside and the case is remanded back to the trial court for fresh disposal in accordance with the law in force. All the amendment applications submitted will stand allowed and the parties may be permitted to amend the plaint or written statement, if so required, and to adduce additional evidence. The parties shall appear before the trial court on 10.11.2021.
RFA No.563 of 2007 4
The trial court shall address the question of lateral support and its extent and the damages, if any, and dispose of the suit within nine months from the date of appearance of parties, untramelled by any of the observations made herein.
The appeal will stand allowed accordingly. No costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
RFA No.563 of 2007
5
APPENDIX
APPELLANT'S ANNEXURE:
ANNEXURE A : TRUE COPY OF THE DEATH CERTIFICATE DATED 16.5.2013.
ANNEXURE B : TRUE COPY OF THE WILL EXECUTED IN FAVOUR OF THE APPLICANT, DATED 22.2.2013.
RESPONDENT'S ANNEXURE: NIL
// TRUE COPY //
P.A. TO JUDGE
3 issues framed by the court
Whether the trial court's dismissal of suit for non-identification of property was sustainable.
Whether the plaintiff was given sufficient opportunity to amend plaint to fix boundary and seek necessary reliefs.
Whether lateral support claims can be decided without identifying separating boundary initially.
1 VALLIYAMMAL (DIED, LEGAL REPRESENTATIVE IMPLEADED) THANTHRI, W/o KAVALAN
ADDL.A2 VELAYUDHAN
HABEEB, S/o KHADER
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
