S. Suresh Kumar v. S.K. Engineering

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 4TH DAY OF JULY 2012/13TH ASHADHA 1934 FAO.No. 157 of 2007 (Y) ----------------------AS.41/2003 of PRL.SUB COURT,TRIVANDRUM OS.1612/2000 of III ADDL.MUNSIFF'S COURT, TRIVANDRUM APPELLANT/RESPONDENT/DEFENDANT: ----------------------------- S.SURESH KUMAR, PROPRIETOR, KALPAKA OIL PRODUCTS RESIDING AT 20/1343, MANGADU LANE, KARAMANA TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT/APPELLANT/PLAINTIFF: ------------------------------- S.K.ENGINEERING, REPRESENTED BY ITS MANAGING PARTNER, D.S.SAJITHA, RESIDING AT 7 D KAWDIAR, MANOR APARTMENTS, KAWDIAR P.O. TRIVANDRUM. BY ADV. SRI.K.ANAND (A.201) BY ADV. SMT.LATHA KRISHNAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.NO.157/2007 ORDER ON I.A.NO.1909/2007 IN F.A.O.NO.157/2007 -----------DISMISSED 4/7/2012 Sd/HARUN-UL-RASHID, JUDGE. True Copy P.S. TO JUDGE. ## **HARUN-UL-RASHID,J.** **----------------------------F.A.O.NO.157 OF 2007 ----------------------------DATED THIS THE 4TH DAY OF JULY, 2012** ## **JUDGMENT** The substantial questions of law formulated in the appeal are as follows: _1) When the suit is only for injunction against the defendant against trespass, can the appellate court set aside the well considered judgment and remand the case on the ground of non-joinder of necessary parties especially when no such issue arise for consideration in the appeal?_ _2) Has not the appellate court exercised its jurisdiction and power in remanding the case on the sole ground that the suit is bad for non-joinder of necessary parties?_ _3) Has not the appellate court erroneously exercised its jurisdiction in setting aside the decree dismissing the suit for injunction?_ _4) When the evidence in suit is sufficient to prove that plaintiff had no possession over the plaint schedule property and when it is shown that the plaintiff has not_ **-2-** ## **F.A.O.No.157/2007** _even entered the box and proved the cause of action, should not the appellate court dismiss the appeal in toto?_ 2. Defendant in O.S.No.1612/2000 on the file of the IIIrd Additional Munsiff's Court, Thiruvananthapuram is the appellant. The appeal is directed against the order of remand in A.S.No.41/2003 on the file of the Principal Sub Court, Thiruvananthapuram. The suit was filed by the plaintiff (respondent herein) for an injunction restraining the defendant from trespassing into the plaint schedule property, causing any obstruction to the construction work or committing waste therein. The Lower Appellate Court allowed the appeal, set aside the judgment and decree in O.S.No.1612/2000 and remanded the case to the trial court for fresh consideration. The parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 3. The plaintiff's case is as follows: Plaintiff is a partnership firm which is carrying on the **-3-** ## **F.A.O.No.157/2007** business of manufacturing of printing and allied equipments in the name and style “S.K. Engineering”. Plaintiff is an allottee of the plaint schedule property. Plaintiff obtained possession of the same on 19/7/2000. Ext.A2 is the order of allotment of 20 cents with improvements. The allotted property is plot Nos.25 and 26 of development plot at Manvila, which is the plaint schedule property. Defendant is the Proprietor of Kalpaka Oil Products which is situated on the eastern side of the plaint schedule property. Since 1996, the plaintiff has taken all steps to start the industry, but it was belated due to the pendency of O.S.No.187/1996 before the Sub Court, Thiruvananthapuram filed by the defendant against the District Industries Centre. Therefore, the plaintiff's project was stand still till the said suit was finally dismissed. After the dismissal of the suit, plaintiff initiated efforts to start the industry. Accordingly, on 19/7/2000 after complying with all the formalities, plaintiff has taken possession of the plaint schedule property from the District Industries Centre. It is alleged that when **-4-** ## **F.A.O.No.157/2007** the plaintiff started construction work in the plaint schedule property on 2/9/2000, the defendant along with his men made an attempt to trespass into the plaint schedule property and to obstruct the construction work going on therein. Hence, the suit was filed for the aforementioned reliefs. 4. According to the defendant, plaintiff did not get possession as per Ext.A3 document, since the District Industries Centre itself did not have actual physical possession of the plaint schedule property as on 19/7/2000. The defendant contended that he is the owner of 15 cents of development plot and the said plot was acquired by him in public auction conducted by the K.F.C. It is contended that after the purchase of the said 15 cents, he was allowed by the District Industries Centre to possess and improve the adjacent plot for the smooth conduct of the business and that he constructed a drying yard, a toilet and also dug a well in the adjacent plot, after spending lakhs of rupees. 5. The trial court examined the contentions of both **-5-** ## **F.A.O.No.157/2007** sides. After perusing Exts.X1 to X5 produced by the District Industries Centre, the trial court held that the said documents reveal the fact that the defendant had made certain constructions in the unallotted portion by spending huge amounts. The court below also noticed that in Ext.B3 written statement the District Industries Centre had contended that the defendant, even though having right over only 15 cents, by illegal encroachments is using almost the entire extent of 47.650 cents. The court below after perusing Ext.B3 written statement, Ext.B4 objection and Exts.X2 to X6 observed that it can be seen that even in 1988 the defendant was in actual physical possession over the said unallotted area. After appreciating the evidence on record including Exts.C1 to C2 reports, the court below held that the plaintiff, who was not having any possession as on the date of suit, subsequently made so many attempts to take forcible possession of the property, after obtaining an ex parte order of injunction. Therefore, the suit filed by the plaintiff was dismissed. **-6-** **F.A.O.No.157/2007** 6. The suit was filed for injunction simplicitor claiming absolute possession over the plaint schedule property. The defendant resisted the suit claiming possession of the large extent including the plaint schedule property. The Court noticed the fact stated in Ext.B3 written statement wherein it is stated that the land having an extent of 47.650 cents which forms part of plot Nos.27 and 28 was in possession of M/s. Kohinoor Chemicals (P) Ltd. as allotted by the Industries Department for setting up their chemical plant, that 15 cents of land was assigned to the Unit with permission to mortgage the property for financial assistance, that the Unit mortgaged the property to the KFC, that the Unit committed default in repaying the loan and hence the KFC took possession of the property and sold the same in public auction in 1991. The property was purchased by the defendant, who is the Proprietor of M/s.Kalpaka Oil Products. The balance extent, i.e. 32.650 cents has been resumed by the department on 23/7/1991. In Ext.B3 it is also mentioned that M/s. Kalpaka Oil Products **-7-** ## **F.A.O.No.157/2007** submitted an application on 21/3/1991 for the allotment of 37 cents of land in plot No.25. In paragraph 8 of Ext.B3 written statement it is stated that the defendant, before getting possession of the land, constructed a well, toilet, and copra drying yard in the land which is in possession with the department. 7. In A.S.No.41/2003 preferred by the plaintiff the Lower Appellate Court considered the contentions of the parties, analysed the oral and documentary evidence produced from either side and Exts.X1 to X6. The Appellate Court observed that in the nature of the dispute that has arisen between the parties, the District Industries Centre and the Government of Kerala, represented by the Secretary to Industries Department are necessary parties to the suit. The Appellate Court also noticed the fact that the entire property in Manvila Industrial Estate belonged to Government of Kerala through the Industries Department and that it was allotted to various persons for starting industrial unit by the General Manager of District Industries Centre. Therefore, the **-8-** ## **F.A.O.No.157/2007** Court held that it is for the General Manager of District Industries Centre to say as to who is in possession of the property in dispute at the time of institution of the suit. The Court also noticed the fact that 15 cents of property was purchased by the defendant and that the dispute is with regard to the remaining property having an extent of 47.650 cents. Referring to Exts.B3 and X4 the Court observed that the case of District Industries Centre is that provisional allotment was made with respect to the said plot in favour of the appellant but the District Industries Centre did not say that possession was handed over to the appellant. The Court further found that the competent authority to speak about the possession of the District Industries Centre and the Industries Department and for passing an effective decree, the said officials are necessary to be impleaded and therefore it is for the plaintiff to amend the plaint suitably impleading those officials. Therefore, the learned Judge took the view that the case will have to be remanded for fresh consideration, after affording an opportunity to **-9-** ## **F.A.O.No.157/2007** both sides to amend the pleadings and to adduce fresh evidence. 8. The learned counsel for the appellant brought to the notice of this Court the decision reported in **Narayanan v. Kumaran and others ((2004) 4 SCC 26).** In the said decision the Apex Court held that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate question of facts and that the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court. It was held that it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard on the ground enumerated in Section 100. This Court in the decision reported in **Madhavan v. Thankam (2007 (2) KLJ 253)** following the Apex Court's decision referred above, held that the appellant is not entitled to agitate on questions of facts and that the appeal would be entertained only on substantial questions of law. **-10-** ## **F.A.O.No.157/2007** 9 . In the light of the facts and circumstances discussed above, I agree with the findings recorded by the Appellate Court that the matter will have to be disposed of afresh after affording opportunity to both sides to amend the pleadings and to adduce fresh evidence in the matter. In the result, the appeal fails and accordingly dismissed. No order as to costs. **HARUN-UL-RASHID, JUDGE.** **kcv.**