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IRUMBAN UMMERKUTTY v. VELLORA VADAKKE VEETTIL RAMACHANDRAN
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
OP(C) NO.520 OF 2024
AGAINST THE ORDER/JUDGMENT IN OS 173/2017 OF MUNSIFF
COURT, PAYYANNUR
OS 162/2018 OF MUNSIFF COURT, PAYYANNUR PETITIONER/PETITIONER AND DEFENDANT:
IRUMBAN UMMERKUTTY, AGED 58 YEARS,
S/O.ABDULLA HAJI,
KUNHIMANGALAM AMSOM EDANAD DESOM,
KANNUR DISTRICT, PIN - 670327.
BY ADVS.
M.SASINDRAN
SATHEESHAN ALAKKADAN
RESPONDENT/RESPONDENT/PLAINTIFF:
VELLORA VADAKKE VEETTIL RAMACHANDRAN,
AGED 66 YEARS, S/O.CHIRIYA AMMA, VELLUR AMSOM, ANNUR DESOM, KANNUR DISTRICT, PIN - 670307.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated, this the 27th February, 2024 The petitioner herein is the plaintiff in the suit, O.S.No.162/2018; and the defendant in the suit, O.S.No.173/2017, both pending before the Munsiff's Court, Payyanur. The petitioner filed Ext.P7 application for joint trial of the said suits. However, the same was dismissed, vide Ext.P9. Aggrieved by Ext.P9 order, the instant Original Petition is filed.
2. Heard the learned counsel for the petitioner. Since this Court choose to dispose of the matter in limine, notice to the respondent is dispensed with.
3. This Court notice that the relief sought for in first suit, O.S.No.173/2017 as per Ext.P1 plaint is for declaration of easement by prescription over plaint C schedule property, so
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as to access B schedule room, and also, for an injunction. The second suit, O.S.No.162/2018 is preferred by the petitioner herein as the plaintiff seeking a mandatory injunction to demolish plaint B schedule room and to close the business, which is conducted by the 2nd defendant therein. The contention urged is to the effect that the building has been constructed without any enabling licence/permit from the Muncipality concerned, wherefore, the building is liable to be demolished. According to the learned counsel, the easement sought for in the first suit, O.S.No.173/2017, is for the purpose of accessing the B schedule room, which is sought to be demolished in the second suit. Accordingly, the suits are liable to be tried jointly, is the submission made. Learned counsel would contend that the issue to be decided is one and the same.
4. This Court cannot endorse the submission made by the learned counsel for the petitioner. As
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rightly found by the learned Munsiff, the parties are not the same in both the suits. The relief sought for are also different. The issue to be considered is also different and not as contended by the learned counsel for the petitioner herein. The contention that if the second suit is allowed, the prayer sought for in the first suit will become infructuous, rather not allowable, is far- fetched. This Court also notice that the demolition of a building, which is allegedly constructed without any permit, is not something to be granted on the mere asking. The same has to be considered in the light of the various provisions of the Municipalities Act and Rules. The Secretary of the Muncipality concerned, the Commissioner of Food Safety, The D.M.O, Kannur, The District Fire Officer etc., are parties to the second suit. The scope of the subject matter, which is being considered in the two suits are not one and the same, or even similar.
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5. This Court finds no reason to interfere with the reasoned order vide Ext.P9. As it is well settled, this Court is not supposed to interfere with an order - in exercise of its powers under Article 227 of the Constitution - unless the order is manifestly wrong or arbitrary.
In the circumstances, the Original Petition fails and the same is dismissed.
Sd/-
C.JAYACHANDRAN, JUDGE
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