M/s Ananth Oil Extractions Pvt Ltd & M/s Krishna Novelty Stores v. Cochin Municipal Corporation and Others

W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -1- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 23RD DAY OF JULY 2024 / 1ST SRAVANA, 1946** **WP(C) NO. 15688 OF 2023** ## **PETITIONER:** **M/S. ANANTH OIL EXTRACTIONS PVT. LTD., A COMPANY HAVING REGISTERED OFFICE IN ANANTH TOWER, VIJAYARAGHAVA MENON ROAD, RAVIPURAM, ERNAKULAM, COCHIN-16, REPRESENTED BY ITS MANAGING DIRECTOR, LATHA K.NAIR, AGED 54 YEARS, WIFE OF SUNDARRAJ SURENDRANATH, RESIDING AT TATA TRITVAM, TOWER I-3B, MARINE DRIVE, COCHIN-18** **BY ADVS. SRI PEEYUS A.KOTTAM SRI K.R.SUNIL** ## **RESPONDENTS:** |**1**|**COCHIN MUNICIPAL CORPORATION**| |---|---| ||**CORPORATION OFFICE, P.B.NO. 1061, ERNAKULAM, KOCHI-**| ||**682011 REPRESENTED BY ITS SECRETARY,**| ||**PIN - 682011**| |**2**|**EXECUTIVE ENGINEER**| ||**COCHIN MUNICIPAL CORPORATION,**| ||**CENTRAL ZONE, ERNAKULAM,**| ||**KOCHI - 682011**| |**3**|**KRISHNA NOVELTIES STORES,**| ||**A PARTNERSHIP FIRM HAVING ITS**| ||**OFFICE AT VI/964, BAZAR ROAD,**| ||**MATTANCHERY P.O,PIN - 682002 REPRESENTED BY ITS**| ||**MANAGING PARTNER R.NITHYANANDA KAMATH, SON OF**| ||**K.RAJAGOPALA KAMMATH, AGED 57 YEARS.**| |**4**|**SECRETARY, COCHIN MUNICIPAL CORPORATION**| ||**CORPORATION OFFICE,**| ||**P.B.NO. 1061, ERNAKULAM,**| ||**KOCHI - 682011**| W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -2- **5 VIGILANCE LOCAL SELF GOVERNMENT DEPARTMENT, 5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P.O, THIRUVANANTHAPURAM - 695003** **BY ADVS.** **R3 BY SRI N.NANDAKUMAR MENON (SR) SRI RAVISANKAR P K S.SACHITHANANDA PAI** **SRI R.HARISHANKAR (FOR KOCHI MUNICIPAL CORPORATION) SRI R.NIKHIL, ADV.COMMISSIONER SMT.DEEPA, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.01.2024, ALONG WITH WP(C).18309/2023 AND OP(C) 1375/2023, THE COURT ON 23.7.2024 DELIVERED THE FOLLOWING:** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946** **WP(C) NO. 18309 OF 2023** ## **PETITIONER:** **KRISHNA NOVELTY STORES REPRESENTED BY ITS MANAGING PARTNER, R NITHYANANDA KAMATH, VI/964, BAZAR ROAD, MATTANCHERRY P O, PIN - 682002** **BY ADVS. SRI N.NANDAKUMARA MENON (SR.)** **SRI S.SACHITHANANDA PAI SRI P.K.RAVISANKAR** ## **RESPONDENTS:** |**1**|**KOCHI MUNICIPAL CORPORATION**| |---|---| ||**CORPORATION OFFICE,**| ||**ERNAKULAM, KOCHI,**| ||**REPRESENTED BY ITS SECRETARY - 682011**| |**2**|**EXECUTIVE ENGINEER**| ||**COCHIN MUNICIPAL CORPORATION,**| ||**CENTRAL ZONE, ERNAKUALM,**| ||**KOCHI - 682011**| |**3**|**SECRETARY**| ||**COCHIN MUNICIPAL CORPORATION,**| ||**CORPORATION OFFICE,**| ||**ERNAKULAM,**| ||**KOCHI - 682011**| |**4**|**M/s.ANANTH OIL EXTRACTIONS PVT LTD**| ||**REGISTERED OFFICE IN ANANTH TOWER, VIJAYARAGHAVA**| ||**MENON ROAD, RAVIPURAM, ERNAKULAM,**| ||**COCHIN, REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**LATHA K NAIR,**| ||**W/O SUNDARRAJ SURENDRANATH,**| W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -4- **RESIDING AT TATA TRITVAM, TOWER I-3B, MARINE DRIVE, COCHIN, ERNAKULAM - 682018** **BY ADVS. SRI PEEYUS A. KOTTAM** **SRI R.HARISHANKAR (FOR KOCHI MUNICIPAL CORPORATION) SRI R.NIKHIL, ADV.COMMISSIONER** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, ALONG WITH WP(C).15688/2023 AND OP(C) 1375/2023, THE COURT ON 23.7.2024 DELIVERED THE FOLLOWING:** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -5- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 OP(C) NO. 1375 OF 2023** **JUDGMENT IN CMA 56/2023 OF ADDITIONAL DISTRICT COURT – VIII, ERNAKULAM DATED 27.06.2023** **(ORDER DATED 13.04.2023 IN I.A.No.3 OF 2023 IN OS 257/2023 ON THE FILE OF THE COURT OF II ADDITIONAL MUNSIFF, ERNAKULAM)** ## **PETITIONER/RESPONDENT/PETITIONER/PLAINTIFF:** **M/S. ANANTH OIL EXTRACTIONS PRIVATE LIMITED VIJAYA RAGHAVA MENON ROAD, RAVIPURAM, ERNAKULAM, KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR, LATHA K NAIR, AGED 54, W/O SUNDERRAJ SURENDRANATH, TATA TRITVAM, TOWER I -3B, MARINE DRIVE, KOCHI-18** **BY ADVS. SRI SABU GEORGE SRI P.B.KRISHNAN (SR.) SRI P.B.SUBRAMANYAN SRI MANU VYASAN PETER** ## **RESPONDENT/APPELLANT/RESPONDENT/DEFENDANT:** **KRISHNA NOVELTY STORES** **A PARTNERSHIP FIRM, VI/964, BAZAR ROAD, MATTANCHERRY. P.O, KOCHI-682002** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -6- **REPRESENTED BY ITS MANAGING PARTNER R. NITHYANANDA KAMATH** **BY ADVS. SRI N.NANDAKUMARA MENON (SR.) SRI SACHITHANANDA PAI SRI P.K.RAVISANKAR** **SRI R.NIKHIL, ADV.COMMISSIONER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.01.2024, ALONG WITH WP(C).18309/2023 AND WP(C) 15688/2023, THE COURT ON 23.07.2024 DELIVERED THE FOLLOWING:** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -7- ## **T.R. RAVI, J.** **-------------------------------------------W.P.(C)Nos.15688 of 2023 & 18309 of 2023 & OP(C)No.1375 of 2023 -------------------------------------------Dated this the 23rd day of July, 2024** ## **JUDGMENT** An extent of 23.234 cents in Sy.No.430/2 & 5 of Ernakulam Village, Kanayannur Taluk, originally belonged to one Sri Rozario. Sri Rozario constructed a commercial building in 6.034 cents of the said land in 1967. The property is abutting MG Road, Ernakulam. On 11.4.1975, Sri Rozario gifted the right to construct the 2[nd] floor of the building to his sisters. However, it has been specified that the sisters have not been given any right over the land. Sri Rozario also retained the right over the terrace of the 2[nd] floor. Sri Rozario's sisters constructed the 2[nd] floor which had an extent of 2800 Sq.Ft. Sri Rozario executed a sale deed in respect of the entire property and the building, except the 2[nd] floor to a third party. On the premise that the property had been undervalued in the sale deed, the Income-tax Department initiated proceedings, and the property was brought for sale. The Income-tax Department auctioned the property on 28.3.1992 in favour of M/s.Ananth Oil Extractions Private Limited, W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -8- who is the petitioner in W.P.(C).No.15688 of 2023 and O.P. (C)No.1375 of 2023. M/s.Ananth Oil Extractions thus got title over 23.234 cents of land and the building, except the 2[nd] floor. There were tenants in various portions of the building. Sri Nithyananda Kamath, the Managing Partner of M/s.Krishna Novelty Stores was one such tenant. M/s.Krishna Novelty Stores is the respondent in OP(C).No.1375 of 2023, the 3[rd] respondent in W.P.(c).No.15688 of 2023, and the petitioner in W.P.(c)No.18309 of 2023. 2. On 03.02.1994, M/s.Ananth Oil Extractions executed an agreement for sale in favour of some of the tenants. Disputes arose regarding the agreement, and O.S.No.581 of 1996 was filed before the Sub Court, Ernakulam, for specific performance of the agreement for sale. During the pendency of the suit, the tenants filed a suit as O.S.No.1095 of 2021 before the First Additional Munsiff Court, Ernakulam, for an injunction. Sri R.Nithyananda Kamath was one of the plaintiffs in the suit. One of the allegations in the suit was that erecting hoardings on the terrace would adversely affect the stability of the building. O.S.No.1095 of 2001 was decreed on 25.11.2010. The suit for specific performance was also decreed. Pursuant to the decree in the suit for specific performance, the sale deed was executed on 21.3.2006 as per Document No.1742 of SRO, Ernakulam W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -9- in favour of five persons. 3456.60 shares out of 7700 undivided shares of the land in 6.034 cents and the specified shop rooms were assigned. One of the assignees was M/s. Industrial Enterprises, a firm represented by its Partner Sri Nithyananda Kamath. Later, the above-mentioned 5 transferees partitioned the property between them by executing a partition deed (Document No.4400/2006 of SRO, Ernakulam), and 820.64/7700 undivided shares and one ground floor shop room was allotted to the share of Sri R. Nithyananda Kamath. 3. Much later, M/s.Krishna Novelty Stores, represented by its Partner Sri Nithyananda Kamath, purchased the 2[nd] floor of the building from the sisters of Sri Rozario on 26.10.2022 as per sale deed No.3423/2022 of SRO, Ernakulam. It can thus be seen that M/s. Krishna Novelty Stores became the owner of the 2[nd] floor of the building without any right over the land, and Sri Nithyananda Kamath, through another firm, M/s. Industrial Enterprises, became the owner of 820.64/7700 undivided share in the property and one ground floor shop room in the property. 4. When M/s. Krishna Novelty Stores started demolition of the roof of the 2[nd] floor of the building, M/s. Ananth Oil Extractions preferred O.S.No.257 of 2023 before the 2[nd] Additional Munsiff Court, Ernakulam seeking an injunction against the demolition. The above W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -10- suit was filed, alleging that the construction activities would affect the stability of the building and that the required permit had not been secured from the Corporation of Cochin. 'M/s.Ananth Oil Extractions' is hereinafter referred to as 'the plaintiff' and 'M/s.Krishna Novelty Stores' is hereinafter referred to as 'the defendant'. The plaintiff continued to be the owner of the balance undivided share after the transfer of 3456.60/7700. An Advocate Commission had been taken out who had reported that massive demolition work was going on. The defendant entered appearance and filed a counter affidavit stating that repair of damaged portions of the roof alone is being carried out. It was contended that the permit under the Kerala Municipality Building Rules, 2019 (KMBR 2019) is not required and that the consent of the plaintiff was also not required for carrying out the demolition and construction of the roof. While considering the question of granting an order of injunction, the Courts usually consider whether a prima facie case has been made out, whether there is a balance of convenience existing in favour of the grant of an order of injunction, and whether any irreparable loss or injury will be caused if an order of injunction is not granted. The trial court considered the question whether _prima facie_ has been made out and held in the affirmative. The Court found that the Ext.C1 Commission W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -11- Report would show that the building in question is about 50 years old, there are cracks and fissures in the interior and exterior of the building, and the iron bar in the internal portion was visible. It was noticed that the report would show that the roof of plaint B schedule building had been completely removed using a drilling machine. The Court found that whether the structural stability will be affected by the works undertaken is a matter to be decided on evidence, after examination by a competent Engineer. It was also noted that the question whether any alteration or addition would require a permit or not is also a matter which has to be decided after taking evidence. The Court noted that withholding of interim relief would amount to the dismissal of the suit itself since by the time the suit comes up for trial, there will be nothing left to be allowed as a relief to the plaintiff/petitioner, even if the finding would be in his favour. It was hence held that the balance of convenience is also in favour of granting an order of injunction. The Court also found that the plaintiff/petitioner will be put to irreparable loss and injury if an order of injunction is not granted. 5. In the appeal, C.M.A.No.56 of 2023, filed before the Additional District Court-VIII, Ernakulam, against the order granting the injunction, the Appellate Court reversed the finding of the trial W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -12- court by its judgment dated 27.06.2023. Additional documents were produced by both sides at the appellate stage. The Appellate Court considered the additional documents, after receiving the same in evidence. The Court noted that the sisters of late Rozario did not get any rights over the land, and hence, the defendant also did not get rights over the land as per Ext.A9. The court noticed that the B schedule property consisting of 820.64/7700 as fractional share and building No.40/6589 on the ground floor were set apart to the share of Sri.Nithyananda Kamath as per Ext.B1. The court held that, Sri. Nithyananda Kamath is a co-owner of the land and owner of a shop room set apart for him, and it cannot be said that he has no right over Plaint A scheduled property. The court noted that the owner of the land had given unfettered rights to his sisters to construct the 2[nd] floor of the building. It was held that there was a complete divesting of the right over the air space to be occupied by the 2[nd] floor. The court found that the said right was not a license, purely personal in nature, and once the right is transferred, the defendant would also have the same right. The court further held that the owner of the second floor has a right to keep the building in good condition and any danger to the structural stability of the building has to be strengthened by necessary repairs. The court considered the issue as W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -13- a question whether a co-owner is entitled to an order of injunction against another co-owner. According to the Appellate Court, the question whether the defendant had a right to carry out repair works was only secondary. The court found that the plaintiff, who is only a co-owner, has no right to seek an injunction against another coowner, restraining him from doing any work in the portion of the property that exclusively belongs to him. 6. The Appellate Court held that the plaintiff does not have a _prima facie_ case. It was held that the roof slab was constructed by the predecessors-in-interest of the defendant, and hence, he has absolute ownership over the same. It was further found that persons claiming under Rozario can claim right only above the roof slab. The above finding is definitely an arguable issue since it would, in effect, amount to saying that one person has the right over the roof slab and another has a right above the roof slab. Such a conclusion, even if legally possible, cannot be arrived at except after a full-fledged trial. The Appellate Court found that the repair work that is sought to be carried out by the defendant is required for strengthening the building and that since the entire roof has admittedly been removed, the entire building including the first floor and the ground floor will be affected by the rain water rushing into the building. The court, hence, W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -14- found that there was a necessity to recast the roof over the second floor. The court held that it was not a question whether there is a right for the defendant to re-concrete the structure, but the question is whether the plaintiff is entitled to the injunction sought for. Another finding rendered by the Appellate Court is that the court need not at that stage consider whether a permit is required for the proposed work or not since the said issue was under consideration of this Court. The court further found that if, finally, the plaintiff succeeds, what has been constructed by the defendant can be removed, and there is no question of irreparable injury or inconvenience caused to the plaintiff. The court also considered the fact that the south-west monsoon has begun, which would last for three to four months, and this would also affect the entire building. O.P(C)No. 1375 of 2023 has been preferred by the plaintiff against the judgment in C.M.A.No.56 of 2023. 7. WP(C) No.15688/2023 has been filed by the plaintiff seeking to quash Ext.P6 No Objection Certificate issued by the Cochin Corporation for removing the existing roof and constructing a new concrete roof. The NOC says that the Corporation has no objection if necessary measures are taken to ensure that no damage is caused to the ground floor and the first floor. This Court stayed Ext.P6 NOC by W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -15- order dated 12.5.2023. Soon thereafter, on 25.5.2023, the Corporation cancelled Ext.P6 NOC. The cancellation of Ext.P6 has been challenged by the defendant in W.P.(c)18309 of 2023. 8. On 10.07.2023, this Court passed an interim order in OP(C)No.1375/2023 appointing an Advocate Commissioner to supervise the work of restoration of the roof subject to specified conditions. Thereafter an interim order was passed on 31.07.2023 permitting the defendant to carry out the retrofitting work in respect of Part A of Annexure A2 sketch submitted by the Advocate Commissioner wherein it was stated that a covering of the hole appearing in Part B will be considered after the present retrofitting work. The Advocate Commissioner was directed to file a further report after retrofitting. Thereafter, on 12.09.2023, this Court called for a report from the Corporation of Kochi regarding the then attributes of the building and the necessity of its repair and maintenance. The Advocate Commissioner was also directed to ensure that the roof of the building is properly protected by temporary means, including sheets and others, to ensure that no rainfall enters the building. The matter again came up for consideration before this Court on 10.10.2023. The Advocate Commissioner reported that unless urgent repair and construction W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -16- work is done, the building is likely to collapse and that would not benefit either of the parties. This Court suggested the constitution of an expert team of structural Engineers along with the Engineer of the Corporation. The parties nominated their Engineers and by order dated 19.10.2023, this Court gave full permission to the Advocate Commissioner to continue the construction in question in consultation with the members of the committee of experts. It was also directed that the blueprint of the work and the way it will be completed is to be placed before the Court, before the work is commenced for approval. Though a committee of experts was constituted, there was a difference of opinion between the members of the committee regarding the need for testing of structural stability. The Advocate Commissioner has submitted reports on these aspects. Since no conclusion could be arrived at, the parties were referred for mediation by order dated 12.12.2023. However, the mediation also failed, and it was in these circumstances that the matter was heard on merits. 9. Heard Sri Peeyus A.Kottam, for the petitioner in W.P.(C)No.15688 of 2023 and for the 4th respondent in W.P. (C)No.18309 of 2023, Sri N.Nandakumara Menon, Senior Advocate, instructed by Sri P.K.Ravisankar for the petitioner in W.P.(C)No.18309 of 2023 and for the 3rd respondent in W.P.(C)No.15688 of 2023, W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -17- Sri P.K.Ravisankar for the respondent in O.P.(C)No.1375 of 2023, Sri P.B.Krishnan, Senior Advocate, instructed by Sri P.B.Subramanyan, for the petitioner in O.P.(C)No.1375 of 2023 and Sri R. Harishankar, for the Cochin Municipal Corporation. 10. I shall first consider O.P.(C)No.1375 of 2023. The counsel for the plaintiff contended that the Appellate Court had exceeded its jurisdiction under Section 104 and Order XLIII Rule 1 of the Code of Civil Procedure. Reliance is placed on the judgments in **Wander Ltd. & Anr. v. Antox India P.Ltd [(1990) Supp. SCC 727], Mohd.Mehtab Khan & Ors. v. Khushnuma Ibrahim & Ors. [AIR 2013 SC 1099],** and **Punjab and Sind Bank v. Frontline Corporation Ltd. [(2023) SCC OnLine SC 470],** in support of the said contention. It is argued that many aspects that are not covered by the pleadings and which are not germane to the case have been discussed in the judgment of the Appellate Court. It is contended that the discussion in the judgment regarding the nature of the right conveyed by the sisters of Sri Rozario to M/s. Krishna Novelty Stores represented by Sri Nithyananda Kamath with regard to the roof of the second floor and the rights of the respective owners are uncalled for as they are matters requiring adjudication in the suit and are not matters on which findings can be entered into for the first time in an W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -18- appeal against an interlocutory order. It is contended that the question whether the rights over the second floor of the building, have been enlarged by the purchase of an interest in the undivided share over the land, and the reference to the provisions of the Indian Partnership Act, 1932 are all issues on which findings could not have been entered into for the first time in the appeal against an interlocutory order. It is submitted that the only question that ought to have been considered was whether the defendant has a unilateral right to demolish and reconstruct the roof of the building. It is also contended that the discussion on Section 60 (b) of the Easements Act was also totally uncalled for since that had not even been raised in the appeal. It is submitted that even on facts, the case does not relate to eviction, but is regarding the right of the defendant to demolish and reconstruct the roof. 11. Another aspect pointed out is that the court below did not decide on the issue, which was actually required to be gone into, i.e., whether a building permit is required for the activity of demolition and construction of the roof. Reliance is placed on the judgments in **Saina & Ors. v. Konderi & Ors. [1984 KLT 428]** and **Mariamma v. Thomas [2003 (1) KLT 245]** . The counsel further argues that Sri Nithyananda Kamath who had contended in 2002 that erecting W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -19- hoardings on the roof would endanger the building and affect his civil rights as a co-owner, cannot be heard to argue two decades later, that he has a unilateral right to demolish the roof and that the building is strong enough to withstand the demolition and reconstruction of the roof. 12. Senior Counsel appearing for the respondents submitted that the defendants had helped the plaintiff to buy the property in a public auction. It is stated that the second floor was purchased on 26.10.2022, and all the co-owners were informed about the proposed demolition. It is further submitted that the statutory authority has granted permission, as can be seen from the NOC issued by the Secretary of the Corporation, and that there was no requirement for a permit. It is submitted that the interest of the defendant as owner of the 2[nd] floor is only to protect the property and the work over the roof of the second floor will be for the benefit of the other owners as well. 13. In **Wander Ltd. (supra),** the Hon’ble Supreme Court held that the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -20- interlocutory injunctions. It was held that the Appellate Court would not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. In **Mohd. Mehtab Khan (supra)** , the Hon’ble Supreme Court held that the Appellate Court would not interfere with the exercise of discretion by the learned trial Judge unless such exercise was found to be palpably incorrect or untenable. In **Punjab and Sind Bank (supra)** , the Hon’ble Supreme Court reiterated that the Appellate Court would not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions and that the Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. 14. While considering the scope of interference by an Appellate Court against an order granting an interim injunction, this Court has to remind itself of the principles that govern the grant of an interim order of injunction. In **Hindustan Petroleum Corpn. Ltd. v.** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -21- **Sriman Narayan [(2002) 5 SCC 760],** the Hon’ble Supreme Court held that it is elementary that the grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. The Apex Court reiterated the wellestablished principles that need to be followed while exercising discretion i.e., (i) whether the plaintiff has a _prima facie_ case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. Regarding the question of irreparable injury, the Hon’ble Supreme Court in **Dalpat Kumar v. Prahlad Singh [(1992) 1 SCC 719]** , observed as follows: “5. … Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages. The third condition also is that “the W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -22- balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” The above passage has been quoted with approval in a subsequent judgment of the Hon’ble Supreme Court in **Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd. [(2020) 5 SCC 410].** 15. In **Saina and Others (supra)** , this Court held that a citizen has a right to institute a suit to ensure that the building Rules are not violated even in the absence of a specific personal injury to him. In **Mariamma (supra)** , this Court held that a simple suit for injunction to restrain a person from violating Building Rules is maintainable. The above judgments are relied on by the plaintiff to submit that the activity undertaken by the defendant requires a permit and license, and unless a decision is rendered on the question of requirement or otherwise of the permit, the Appellate Court could W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -23- not have reversed the finding of the trial court and dismissed the application for an injunction. The counsel submitted that Rules 4 and 8 of the Kerala Municipality Building Rules, 2019, read along with the definitions of the terms “alteration” and “building”, would clearly establish that such an alteration can be made only after obtaining a permit. As per Section 2(1)(f), an alteration means a structural change, such as an addition to the area or height, or addition of floor/floors or mezzanine floor within any existing floor height, or a change of existing floor or changing the roof to concrete slab or reconstruction of existing walls or construction of concrete beams and columns amounting to structural change or construction of internal walls for subdividing the existing rooms with the intention of changing the use of the room/rooms which amount to change in the occupancy group of the building under the rules, or closing of any required means of ingress and egress to the building. Section 2(1)(n) defines 'building' as “any structure for whatsoever purpose and of whatsoever materials constructed and every part thereof whether used for human habitation or not and includes foundation, plinth, walls, floors, roofs, chimneys, plumbing and building services, fixed platforms, verandah, balcony, cornice or projection …. ……”. Rule 4(2) says that no person shall construct, reconstruct, make an addition, extension, or W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -24- alteration to any building or cause the same to be done without first obtaining a building permit from the Secretary and in the case of a low-risk building, without obtaining an acknowledgment receipt which shall be deemed to be a permit from the Secretary. The contention is that since the construction or reconstruction of the roof would amount to an alteration as defined, such an alteration can be made only with a permit, as required under Rule 4(2). Rule 8 specifically says that notwithstanding anything contained in the rules, no building permit shall be necessary for executing certain works that do not otherwise violate any provisions regarding general building requirements, structural stability, and fire safety requirements under the Rules. The only activity that relates to the roof is “petty repairs to the building and pitched roof”. Removal of the roof and reconstruction of the same cannot be termed as a “petty repair to the building and pitched roof”, as contemplated in Rule 8. The contention that a permit is required in the above circumstances cannot be stated to be without any legal basis. It is an issue which needs to be considered by the court. The only question is whether the said aspect should be gone into at the stage of grant of interim injunction. 16. As far as the power of this Court under Article 227 of the Constitution of India is concerned, in **Estralla Rubber v. Dass** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -25- ## **Estate (P) Ltd. [(2001) 8 SCC 97]** , the Hon’ble Supreme Court held that the High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts and that interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice would remain uncorrected. The Apex Court also held that the High Court, under Article 227, cannot exercise its power as an Appellate Court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. (See **Raj Kumar Bhatia v. Subhash Chander Bhatia, [(2018) 2 SCC 87]** , **Sadhana Lodh v. National Insurance Co. Ltd. [(2003) 3 SCC 524]** , **Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181).** 17. Going by the evidence let in and the reports that have been filed before this Court by the Advocate Commissioner appointed by this Court, it is evident that the building as it stands now needs major repairs. It is also clear that the construction over the roof needs to be completed since leaving it as such would only affect the building. In the above circumstances, I do not think that the W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -26- interference by the Appellate Court with the order of injunction granted by the trial court was unjustified. The structural stability has to be ascertained not only for effecting the construction but also for leaving the roof in its present condition without carrying out any repair. 18. As per the reports that have been placed before this Court, I am of the opinion that the repair of the roof that has been undertaken needs to be completed. The trial court had held that the balance of convenience is in favour of the plaintiff and that irreparable injury will be caused to the plaintiff if an order of injunction is not granted. On the facts revealed, it is evident that no irreparable injury will be caused to the plaintiff if the order of injunction is not granted. On the other hand, if the order of injunction is granted, it would result in the roof over the second floor, over which the defendant also has a right to remain in disrepair, affecting the enjoyment of the property by the defendant. The balance of convenience also, hence, tilts in favour of the defendant. The Appellate Court has only corrected the above error by interfering with the order of the trial court and dismissing the application for an injunction. The rights of the plaintiff will not in any manner be affected since, any injury that may ensue to the plaintiff can be W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -27- compensated by damages, unlike in the case of the defendant. The rights of the parties can be decided in the suit, and it will be in the interest of both the plaintiff as well as the defendant that the construction is carried out at least to the extent of covering up the roof and preventing water from entering the building. In the above circumstances, I do not think that any purpose will be served by exercising the jurisdiction under Article 227 to interfere with the order of the Appellate Court. The original petition fails and is dismissed. 19. W.P.(C)No.15688 of 2023 is filed challenging the NOC granted by the Corporation. The NOC was cancelled when this Court had stayed the operation of the order in C.M.A.No.56 of 2023. In view of the judgment in O.P.(C)No.1375 of 2023, the stay granted by this Court stands vacated. No positive orders can be granted in W.P. (C)No.15688 of 2023 since the prayer is no longer relevant. W.P. (C)No.15688 of 2023 is hence dismissed, without prejudice to the contentions raised by the petitioner. However, positive orders are required in W.P.(C)No.18309 of 2023 wherein the order of cancellation of the NOC is challenged. Since the NOC was cancelled in the light of the interim order granted by this Court, it is only just and proper that the NOC which was cancelled is restored. There will hence be a direction to respondents 1 to 3 in W.P.(C)No.18309 of 2023 to W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 **==> picture [22 x 9] intentionally omitted <==** restore the NOC which was cancelled, immediately. W.P.C)No.18309 of 2023 is disposed of with the above direction. It is made clear that this Court is not expressing any opinion regarding the requirement of a permit for reconstruction/repair of the roof of the 2nd floor or the question as to the sufficiency or otherwise of a NOC from the Corporation, and parties are at liberty to agitate the said contentions before the trial court. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -29- ## **APPENDIX OF WP(C) 15688/2023** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF SALE CERTIFICATE DATED 17.01.1996 ISSUED BY THE INCOME TAX DEPARTMENT OFFICE OF THE CHIEF COMMISSIONER, INCOME TAX, KERALA ASSIGNING RIGHT, TITLE, OWNERSHIP OVER THE PROPERTY HAVING 23.234 CENTS OF PROPERTY IN FAVOUR OF THE PETITIONER** **Exhibit P2 THE TRUE COPY OF SALE DEED NO. 3423/2020 DATED 26.10.2022 OF ERNAKULAM SRO** - **Exhibit P3 THE TRUE COPY OF THE JUDGMENT REPORTED IN 2015 (3) KHC 225 (BABU RAGHAVENDRA PAI VS. V.GOPALAKRISHNA PRABHU & OTHERS)** - **Exhibit P4 THE TRUE COPY OF THE PLAINT IN O.S. 257/2023 FILED BEFORE THE MUNSIFF COURT, ERNAKULAM** **Exhibit P5 THE TRUE COPY OF THE FINAL ORDER I.A.3/2023 IN O.S. 257/2023 DATED 13.04.2023** - **Exhibit P6 THE TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 04.05.2023** - **Exhibit P7 THE TRUE COPY OF THE REPRESENTATION DATED 09.05.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF COCHIN CORPORATION WHEREIN SECRETARY ORDERING ENQUIRY** - **Exhibit P8 THE TRUE COPY OF THE RECEIPT DATED 09.05.2023 ISSUED BY THE CORPORATION TOWARDS THE RECEIPT OF EXT-P7 REPRESENTATION** **RESPONDENT EXHIBITS** - **Exhibit R3(a) TRUE COPY OF THE SALE DEED DATED 21-3-2006 REGISTERED AS DOCUMENT NO. 1742 OF 2006 OF SRO, ERNAKULAM** **Exhibit R3(b) TRUE COPY OF THE PARTITION DEED DATED 4400/2006 OF SRO ERNAKULAM Exhibit R3(c) TRUE COPY OF THE MEMO DATED 8-3-2023 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -30- |**Exhibit R3(d)**|**TRUE COPY OF THE REPORT DATED 16-2-2023**| |---|---| ||**SUBMITTED BY M/S. RAO AND ASSOCIATES**| |**Exhibit R3(e)**|**AFFIDAVIT FILED BY MR. C.P. KURIAN IN O.S.**| ||**NO. 257 OF 2023 ON THE FILE OF 2ND**| ||**ADDITIONAL MUNSIFF'S COURT, ERNAKULAM**| W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -31- ## **APPENDIX OF WP(C) 18309/2023** ## **PETITIONER EXHIBITS** **Exhibit P1** **COPY OF DOCUMENT NO. 1742/2006 OF S R O ERNAKUALAM DATED 21.03.2006** **Exhibit P2 COPY OF THE PARTITION DEED NO. 4400/2006 OF S R O ERNAKULAM DATED 02.08.2006** **Exhibit P3 COPY OF SALE DEED NO. 3423/2022 OF SRO ERNAKULAM DATED 25.10.2022** **Exhibit P4 COPY OF THE MEMO DATED 08.03.2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **Exhibit P5 COPY OF THE REPORT DATED 16.02.2023 OF M/S RAO AND ASSOCIATES.** **Exhibit P6 COPY OF THE ORDER DATED 13.04.2023 IN I A 3/2023 IN O S 257/2023 OF THE 2ND ADDITIONAL MUNISIFFS COURT, ERNAKULAM. Exhibit P7 NO OBJECTION CERTIFICATE DATED 04.05.2023 ISSUED BY THE 2ND RESPONDENT. Exhibit P8 COPY OF THE ORDER DATED 25.05.2023 OF THE 2ND RESPONDENT Exhibit P9 TRUE COPY OF THE CERTIFICATE NO. MOPI/COC/10097/2023 DATED 11-7-2023 ISSUED BY THE 2ND RESPONDENT** W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -32- ## **APPENDIX OF OP(C) 1375/2023** |**PETITIONER EXHIBITS**|| |---|---| |**Exhibit-P1**|**A TRUE COPY OF THE GIFT DEED DATED 11-04-**| ||**1975 REGISTERED AS DOC.NO.NO.870 OF 1975**| ||**IN SRO, ERNAKULAM**| |**Exhibit-P2**|**A TRUE COPY OF THE SALE DEED DATED 26-10-**| ||**2022 REGISTERED AS DOC.NO.NO.3423 OF 2022**| ||**IN SRO, ERNAKULAM**| |**Exhibit-P3**|**A TRUE COPY OF THE PLAINT DATED 10-03-**| ||**2023 IN OS 257 OF 2023 ON THE FILE OF THE**| ||**COURT OF II ADDITIONAL MUNSIFF, ERNAKULAM**| |**Exhibit-P4**|**A TRUE COPY OF THE I.A NO.3 OF 2023 DATED**| ||**10-03-2023 IN OS 257 OF 2023 ON THE FILE**| ||**OF THE COURT OF II ADDITIONAL MUNSIFF,**| ||**ERNAKULAM**| |**Exhibit-P5**|**A TRUE COPY OF THE REPORT DATED 23-03-**| ||**2023 FILED BY THE ADVOCATE COMMISSIONER**| ||**IN OS 257 OF 2023 ON THE FILE OF THE**| ||**COURT OF II ADDITIONAL MUNSIFF, ERNAKULAM**| |**Exhibit-P6**|**A TRUE COPY OF THE COUNTER AFFIDAVIT**| ||**DATED 23-03-2023 FILED BY THE**| ||**RESPONDENT IN I.A NO.3 OF 2023 IN OS 257**| ||**OF ON THE FILE OF THE COURT OF II**| ||**ADDITIONAL MUNSIFF, ERNAKULAM**| |**Exhibit-P7**|**A TRUE COPY OF THE REPLY AFFIDAVIT DATED**| ||**27-03-2023 FILED BY THE PLAINTIFF IN OS**| ||**257 OF 2023 ON THE FILE OF THE COURT OF**| ||**II ADDITIONAL MUNSIFF, ERNAKULAM**| |**Exhibit-P8**|**A TRUE COPY OF THE ORDER DATED 13-04-2023**| ||**IN I.A NO.3 OF 2023 IN OS 257 OF 2023 ON**| ||**THE FILE OF THE COURT OF II ADDITIONAL**| ||**MUNSIFF, ERNAKULAM**| |**Exhibit-P9**|**A TRUE COPY OF THE CMA NO.56 OF 2023 ON**| ||**THE FILE OF THE COURT OF ADDITIONAL**| ||**DISTRICT JUDGE- VIII, DATED 17-04-2023**| |**Exhibit-P10**|**A TRUE COPY OF THE COUNTER AFFIDAVIT**| ||**FILED BY THE PETITIONER IN CMA NO.56 OF**| ||**2023 ON THE FILE OF THE COURT OF**| ||**ADDITIONAL DISTRICT JUDGE- VIII, DATED**| W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -33- ||**05-05-2023**| |---|---| |**Exhibit11**|**A TRUE COPY OF THE JUDGMENT IN CMA NO.56**| ||**OF 2023 ON THE FILE OF THE COURT OF**| ||**ADDITIONAL DISTRICT JUDGE- VIII, DATED**| ||**27-06-2023**| |**Exhibit-P12**|**A TRUE COPY OF THE JUDGMENT DATED 25-11-**| ||**2002 IN O.S NO.1095 OF 2001 ON THE FILE**| ||**OF THE ADDL. MUNSIFF COURT, I, ERNAKULAM**| |**RESPONDENT ANNEXURES**|| |**ANNEXURE A1**|**NOTICE OF INSPECTION**| |**ANNEXURE A2**|**A TRUE COPY OF THE REPORT DATED NIL OF**| ||**THE STRUCTURAL ENGINEER RELIED ON BY THE**| ||**RESPONDENT**| |**ANNEXURE A3**|**A TRUE COPY OF THE NOTICE DATED**| ||**08.08.2023**| |**ANNEXURE A4**|**A TRUE COPY OF THE WRITTEN NOTE DATED**| ||**10.08.2023 GIVEN BY THE ARCHITECT**| |**ANNEXURE A5**|**A TRUE COPY OF THE EMAIL DATED 26.08.2023**| ||**SENT BY THE ADVOCATE COMMISSIONER TO THE**| ||**COUNSELS FOR THE PARTIES**| |**ANNEXURE A6**|**A TRUE COPY OF THE OPINION OF THE**| ||**ENGINEER DATED 13.01.2022**| |**ANNEXURE A7**|**A TRUE COPY OF THE PHOTOGRAPHS SHOWING**| ||**THE PRESENT NATURE OF THE BUILDING FROM**| ||**VARIOUS ANGLES**| |**ANNEXURE A8**|**A TRUE COPY OF THE PHOTOGRAPHS SHOWING**| ||**THE PRESENT NATURE OF THE BUILDING FROM**| ||**VARIOUS ANGLES**| |**ANNEXURE A9**|**A TRUE COPY OF THE PHOTOGRAPHS SHOWING**| ||**THE PRESENT NATURE OF THE BUILDING FROM**| ||**VARIOUS ANGLES**| |**ANNEXURE A10**|**A TRUE COPY OF THE PHOTOGRAPHS SHOWING**| ||**THE PRESENT NATURE OF THE BUILDING FROM**| ||**VARIOUS ANGLES**| |**ANNEXURE A11**|**A TRUE COPY OF THE PHOTOGRAPHS SHOWING**| ||**THE PRESENT NATURE OF THE BUILDING FROM**| W.P.(C)Nos.15688/2023 & 18309/2023 & OP(C)No.1375/2023 -34- ||**VARIOUS ANGLES**| |---|---| |**ANNEXURE A12**|**A TRUE COPY OF THE PHOTOGRAPHS SHOWING**| ||**THE PRESENT NATURE OF THE BUILDING FROM**| ||**VARIOUS ANGLES**| |**ANNEXURE A13**|**A TRUE COPY OF THE REPORT DATED**| ||**14.11.2023 PREPARED BY THE COMMITTEE**| ||**CONSTITUTED BY THIS HON'BLE COURT .**|