K.K. SASI v. Secretary, Pala Municipal Council and Pala Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **OP(C).No.1288 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CMA 14/2019 OF SUB COURT, PALA** ## **PETITIONER/S:** **K.K.SASI AGED 66 YEARS S/O. KUTTAPPAN, KALLPPALLY HOUSE, PALA KARA, MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT,** **BY ADV. SRI.JOSEPH T.JOHN** ## **RESPONDENT/S:** **1 SECRETARY PALA MUNICIPAL COUNCIL, MUNICIPAL OFFICE, PALA, KOTTAYAM- 686575. 2 PALA MUNICIPALITY REPRESENTED BY SECRETARY, MUNICIPAL OFFICE, PALA, KOTTAYAM- 686575.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 1111-2020, THE COURT ON 11-11-2020 DELIVERED THE FOLLOWING:** **OP(C).No.1288 OF 2020** ..2.. ## **JUDGMENT** ## **Dated this the 11[th] day of November, 2020** This Original Petition is filed, under Article 227 of the Constitution of India, inter alia, to quash Exhibits P-7 order and P-8 judgment passed by the Court of the first instance and the appellate court, respectively. 2. The case of the petitioner, in brief, in the original petition is that, he was the plaintiff in O.S.No.13 of 2009 of the Court of Munsiff, Pala, which was filed seeking a decree for permanent prohibitory injunction restraining the respondents from causing any obstruction to the usage of plaint item No.2 property. According to him, on the western side of item No.2 property, there was a culvert which was demolished due to an accident. The respondents are attempting to obstruct the usage of plaint item No.2 property, by constructing a culvert in front of it. Along with the suit, the petitioner had filed Exhibit P-2 application, seeking an order of temporary **OP(C).No.1288 OF 2020** **==> picture [17 x 9] intentionally omitted <==** prohibitory injunction to restrain the respondents from causing any obstruction on the southern side of plaint item No.2 property. 3. The respondents filed a written statement, inter alia, contending that by virtue of Section 41(ha) of Specific Relief Act, 1963, ('the Act' for short) no relief could be granted to the petitioner and that the respondents were re-tarring the municipal road in front of plaint item No.2 property. If the re-tarring is blocked, it would affect the respondents and the public. 4. The Court of the Munsiff, after considering the pleadings and materials on record, arrived at a conclusion that by virtue of Section 41(ha) of the Act, an injunction could not be granted. Consequently, the application was dismissed. 5. The petitioner challenged Exhibit P-7 order before the Court of Subordinate Judge, Pala, by preferring CMA No.14 of 2019 (Exhibit P-8).The Appellate Court, **OP(C).No.1288 OF 2020** **==> picture [18 x 9] intentionally omitted <==** after re-appreciating the pleadings and materials on record, came to a conclusion that the relief sought for in Exhibit P-2 application is not in connection with the construction of the culvert, but to restrain all construction on the southern part of plaint item No.2 property, where it joins the municipal road. It was found that the culvert was on the western side of the 10 feet wide road, i.e. plaint item No.2 property. Accordingly, the appellate court held that the petitioner had not made out a prima facie case to prove that even if the culvert is reconstructed, it would cause obstruction to the use of plaint item No.2 property, and that the grant of an injunction would cause obstruction or delay to the completion of infrastructural work, which is hit by the Section 41(ha) of the Act. Therefore, the balance of convenience was in favour of the respondents and that if a temporary injunction is granted, it would impede the infrastructural work of the municipality. Accordingly, the ## **OP(C).No.1288 OF 2020** **==> picture [17 x 8] intentionally omitted <==** appeal was dismissed. 6. It is challenging the concurrent findings in Exhibits P-7 and P-8 orders of the Courts below, that this Original Petition is filed. 7. Heard the learned counsel appearing for the petitioner and the learned standing counsel appearing for the respondents. 8. The sole question that emerges for consideration is whether there is any patent illegality or irregularity in Exhibits P-7 and P-8 orders passed by the courts below, warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 9. The Hon'ble Supreme Court in **ECE Industries Ltd V. SP Real Estate Developers Pvt Ltd.** [(2009) 12 SCC 776] has categorically laid down the law that it would not be open for the third court to interfere with the findings of the two courts unless the order suffers from **OP(C).No.1288 OF 2020** **==> picture [18 x 8] intentionally omitted <==** perversity or arbitrariness. 10. In **Shajahan A.P. and others v. M/S Gulfgate Hair Fixing Private Ltd. and others** [2012 (4) KLT 662], a Division Bench of this Court has laid down the law that the appellate court would be loath to interfere simply because on a de novo consideration of the matter even it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity. 11. This Court again in **Lekshmi v. Letha and another** [2013 (2) KLT 998] has held that this Court can interfere with orders passed by the courts below under Article 227 of the Constitution of India only when the orders are passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 12. In view of the clear enunciation of law in the afore cited precedents, the scope of interference by this Court in an original petition filed under Article 227 of the ## **OP(C).No.1288 OF 2020** **==> picture [17 x 8] intentionally omitted <==** Constitution of India is absolutely minimal and only to correct the order actuated with patent illegality or injustice. 13. On going through the findings of the courts below in Exhibits P-7 and P-8 orders, it can be gathered that the findings are arrived on an appreciation of the prima facie case, balance of convenience and irreparable injury, on the disputed facts, and the facts in the commission report. Both the courts have concurrently found that the petitioner has not established the three necessary ingredients for grant of an order of temporary injunction. 14. On an evaluation of the pleadings and materials on record, particularly Exhibits P-7 and P-8 orders and Exhibit P-3 commission report, I am of the definite opinion that there is absolutely no illegality or perversity in Exhibits P-7 and P-8 orders passed by the courts below, warranting interference by this Court to exercise its supervisory powers under Article 227 of the **OP(C).No.1288 OF 2020** **==> picture [18 x 8] intentionally omitted <==** Constitution of India. Resultantly, this Original Petition is dismissed. Untrammeled by the observation in this judgment, the Court of the Munsiff, Pala, shall consider and dispose of O.S.No.13 of 2019, in accordance with law. Sd/- **C.S.DIAS JUDGE** kkj ## **OP(C).No.1288 OF 2020** ..9.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO. 13/2019 BEFORE THE MUNSIFF COURT, PALA DATED 14.01.2019. EXHIBIT P2 TRUE COPY OF THE TEMPORARY PROHIBITORY INJUNCTION APPLICATION DATED 14.01.2019 BEFORE THE MUNSIFF COURT, PALA IN OS NO. 13/2019. EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT DATED 25.01.2019 IN OS NO.13/2019 BEFORE THE MUNSIFF COURT, PALA. EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO. 13/2019 BEFORE THE MUNSIFF COURT, PALA DATED 14.02.2020. EXHIBIT P5 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT IN OS 13/2019 BEFORE THE MUNSIFF COURT, PALA. EXHIBIT P6 TRUE COPY OF THE OBJECTION TO THE TEMPORARY PROHIBITORY INJUNCTION APPLICATION OS NO. 13/2019 BEFORE THE MUNSIFF COURT, PALA. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 09.04.2019 IN IA NO. 70/2019 IN IS NO.13/2019 BEFORE THE MUNSIFF COURT, PALA. EXHIBIT P8 TRUE COPY OF THE ORDER IN CMA NO. 14/2019 BEFORE THE SUB COURT, PALA DATED 16.06.2020.**