JOHNY Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ petition is preferred seeking directions to the second respondent to prevent the constructions carried on by respondents 3 and 4 otherwise than in accordance with Ext.P2 order passed by the Munsiff's Court, Ernakulam in O.S.No.418 of 2016.

(2.) The facts relevant for the disposal of the writ petition are the following : The petitioner owns 3 cents of property and a building. The petitioner is residing with his family in the said building. According to the petitioner, during June, 2016, the third respondent company started construction of an apartment complex in the property lying adjoining to the property of the petitioner on its western side. It is also the case of the petitioner that for the purpose of constructing the building, the third respondent has excavated soil from their property upto the western boundary of the property of the petitioner at a depth of 50 meters without providing any lateral support for the soil of the property of the petitioner. It is alleged by the petitioner that on account of the said construction activity, cracks were developed in the building of the petitioner. The petitioner has filed O.S.No.418 of 2016 before the Munsiff's Court, Ernakulam, in the circumstances, seeking a decree of permanent prohibitory injunction restraining the third respondent from proceeding with the construction proposed by them in their property without providing sufficient lateral support for the property of the petitioner. Ext.P1 is the plaint in the said suit. The petitioner has also filed an application as I.A.No.2417 of 2016 in the said suit, seeking an order of temporary injunction restraining the third respondent from proceeding with the construction, without taking adequate steps for the lateral support for the property of the petitioner. On a consideration of the materials on record, the court passed Ext.P2 order on the said application. As per Ext.P2 order, the ad interim order of injunction initially granted in favour of the petitioner was modified, permitting the third respondent to continue the construction after providing concrete or granite wall support to the property of the petitioner. The operative portion of the said order reads thus :

(3.) The third respondent has filed a counter affidavit in this matter. In the counter affidavit filed by the third respondent, it is contended, among others, that the writ petition filed under Article 226 of the Constitution is not maintainable for the enforcement of Ext.P2 order of injunction. It is also contended by the third respondent in the counter affidavit that the third respondent has not violated Ext.P2 order. According to the third respondent, Ext.P2 order has been passed based on Ext.R3(a) undertaking given by the third respondent in the suit that they will construct a concrete wall in the property with a ramp, and that they have almost completed the construction of the concrete wall referred to in the said undertaking. It is alleged by the third respondent that the petitioner and others are not permitting them to complete the construction referred to in Ext.R3(a) undertaking. It is asserted by the third respondent in the counter affidavit that the concrete wall constructed by them is sufficient to protect the property of the petitioner.