MARIAMMA Vs. THOMAS

JUDGEMENT

(1.) The defendant in O.S. 2343 of 2001, a suit for permanent prohibitory injunction, is the revision petitioner. The Civil Revision Petition is filed against an order passed by the Trial Court allowing an application filed by the plaintiff under O.39 R.1 of the Code of Civil Procedure by which an interim injunction was passed restraining the defendant from proceeding with the construction of a shopping complex situated in the plaint schedule property. The plaintiff, who claims to be a person very much interested in the affairs of the Kaiparambu Panchayat has filed the suit for a decree of permanent prohibitory injunction restraining the revision petitioner from constructing any further or any new construction in the property unauthorisedly or illegally. Along with the plaint, the respondent filed I.A. 5994 of 2001 under O.39 R.1 of the Code of Civil Procedure for an order of temporary injunction restraining the revision petitioner from proceeding with the construction or making any new construction in the suit property unauthorisedly or illegally. The prayer was opposed by the revision petitioner. The learned Munsiff after hearing both sides, found that the respondent has established a prima facie case and granted the order of temporary injunction. Aggrieved by the order of the Trial Court granting temporary injunction, the revision petitioner filed C.M.A. 478 of 2001 before the District Court. The learned District Judge after considering the rival contentions concurred with the view taken by the Trial Court and dismissed the Civil Miscellaneous Appeal. Those concurrent findings are under challenge in this Civil Revision Petition.

(2.) The short facts necessary for the disposal of the Civil Revision Petition are as follows: - The plaint schedule property belongs to the revision petitioner. She had started construction of a shopping complex by name Mekkat Shopping Complex. The respondent filed the suit alleging that the revision petitioner is making the construction in violation of the provisions contained in S.220 of the Kerala Panchayat Raj Act without leaving the minimum road frontage and also she is constructing the building without obtaining necessary plan and licence as provided under S.235A to 235Z of the Kerala Panchayat Raj Act. The main objection raised by the revision petitioner is that the respondent has no locus - standi to seek for an order of temporary injunction as he has not suffered any personal injury and he is residing about 2 Kms. away from the suit property. He further contended that the construction is strictly in compliance with the provisions of the Panchayat Raj Act and in accordance with the approved plan prepared by the competent Engineer. It is also contended that even if the revision petitioner violates the rules, it is for the Panchayat to take action and not for the respondent. Overruling the objections, the Trial Court passed an order of temporary injunction. The revision petitioner filed C.M.A. 478 of 2001 before District Court. The lower appellate Court confirmed the order passed by the Trial Court and dismissed the Civil Miscellaneous Appeal. Those concurrent orders are under challenge in this Civil Revision Petition.

(3.) The learned counsel appearing for the revision petitioner has vehemently argued that the suit itself is not maintainable as it is filed not in accordance with the provisions of S.91 of the Code of Civil Procedure. It is contended that since the respondent has no case of any personal injury, he can maintain the action only in accordance with the provisions contained in S.91 of the Code of Civil Procedure, which deals with public nuisance and other wrongful acts affecting the public. It is contended that the suit can be filed by the Advocate General or by two or more persons with the leave of the Court. It is also contended that both the Courts have carried away with the fact that the revision petitioner started construction of the building without leaving the distance of three metres from the road which is situated on the eastern side of the building. But, the Commissioner deputed has reported in unequivocal terms that without the assistance of the Taluk Surveyor the eastern boundary of the property can not be fixed. It is contended that without fixing the eastern boundary, it is impossible to find whether there is infraction of any provisions contained in the Panchayat Raj Act or Rules.