JUDGMENT
The plaintiff in a suit for injunction is the appellant. He originally filed the suit against first defendant - Thrissur Municipal Corporation for a prohibitory injunction restraining them from causing demolition of the building. Subsequently the suit was amended with a prayer for mandatory injunction as well. It is contended that the room in question, which was stated to have been given on licence to the appellant was demolished by the first defendant Corporation on 22.9.2000
2. The courts below found that Ext.B16 file proved through the Officer of the first defendant would show that the demolition did take place long prior to 22.9.2000 The courts below also relied upon Ext.C1 report filed by the Advocate Commissioner which supported the entries in Ext.B16 that the demolition of the shed/room had taken place even before the institution of the suit. Therefore, it was a case where, in order to avoid issuance of notice under Sec.544(2) of the Kerala Municipality Act the suit was laid with a prayer for prohibitory injunction only and subsequently by way of amendment a prayer for mandatory injunction was also introduced.
3. It is also pertinent to note that the evidence would show that the amendment petition was filed after expiry of six months from 22.9.2000, which according to the appellant, is the date of demolition of the shed/room. Even if that statement is accepted, still the demolition had taken place more than six months prior to the date of filing of the amendment petition. Learned counsel for the appellant would submit that once the amendment is allowed it would relate back to the date of the suit and if so, the first defendant cannot contend that the relief of mandatory injunction sought for is hit by Sec.544(3) of the Act. But it is a case where it is proved that the demolition had taken place more than six months prior to the date of amendment. It is also brought out in evidence that the first defendant caused demolition of the shed/room after following the procedure prescribed under the Act.
4. There is one more aspect which assumes importance. Admittedly, the licence period stood expired long back. The prayer is for a mandatory injunction directing the first defendant to construct the room. Even according to the appellant, he was only a licensee. The remedy open to him was to seek appropriate relief within the time prescribed. That was not done. Not only that when the right of the appellant is only as a licensee even if it is assumed that the demolition had taken place before the expiry of the licence period and that there was non-compliance of any procedure prescribed under the Kerala Muncipality Act and Rules, still the appellant is not entitled to get a decree for mandatory injunction directing the first defendant to put up the shed/room which was demolished. The courts below have concurrently held that the appellant is not a person entitled to get the benefit under Sec.60(a) or (b) of the Easements Act. The courts below after perusing Ext.B16 file found that the first defendant had followed the procedure prescribed under the Act and it was only thereafter the shed/room was demolished. Even if the eviction of the licensee was contrary to the terms of the licence he can only sue for damages and cannot get a decree for mandatory injunction for construction of the room or for his re-induction into the premises since the licence period stood expired long back.
5. The 2nd defendant made a counter claim restraining the plaintiff from obstructing his entry to the western shutter fixed to room No. 36. The courts below found that the allegation so made by the 2 defendant is not proved. The courts below after analysing the evidence found that the plaintiff had no right or possession over the disputed site, namely; the vacant area. The western shutter was fixed with the permission of the first defendant. That permission includes a permission to have entry to room No. 36 from the western side as well. Since such a permission was obtained, the 2 defendant was entitled to make use of the same. The courts below held that no obstruction should be caused by the plaintiff or anybody else restraining the 2 defendant from using that entry. That is only a question of fact. The decision was rendered by the courts below after analysing the evidence adduced by the parties.
6. It is also argued by the learned counsel for the appellant that a specific ground was raised before the trial court that the counter claim put forward by the defendants is not entertainable in view of the dismissal of the earlier suit, O.S No. 471/2000 filed by the defendants. The trial court found that O.S No. 471/2000 was dismissed for default. True, if the counter claim was filed showing the same cause of action that should have been given due consideration since the suit O.S No. 471/2000 was not restored to file. However, the trial court found that since the dismissal of O.S No. 471/2000 was only for default, that counter claim is not unsustainable. Before the appellate court no specific ground was raised regarding the maintainability of the counter claim or the decree passed on that counter claim. Therefore, I find no reason to hold that the decree granted in the counter claim is unsustainable.
No substantial question of law arises for consideration and hence, this RSA is dismissed.