Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH DAY OF DECEMBER 2012 29TH AGRAHAYANA 193 RSA.No. 1340 of 2012 () ----------------------- AS.5/2008 of SUB COURT, KOCHI OS.482/2006 of MUNSIFF COURT, KOCHI ---------------------------- APPELLANT(S)/APPELLANT/PLAINTIFF: -------------------------------- ANTONY, S/O.VARUTHUKUTTY, CHERUKODATH HOUSE, KARTHEDAM, ELAMKUNNAPUZHA, MALIPURAM P.O., 682511, ERNAKULAM DT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S)/RESPONDENT/DEFENDANT: ----------------------------------- GEORGE, S/O.MATHIRAPPILLIL LATE JOSEPH, KARTHEDAM, ELAMKUNNAPUZHA, MALIPURAM P.O.-682511, ERNAKULAM DT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: NS THOMAS P. JOSEPH, J.
===================== R.S.A No. 1340 of 2012 ============================== Dated this the 20th day of December, 2012 JUDGMENT The plaintiff in O.S. No. 487 of 2006 of the Munsiff's Court, Kochi is the appellant before me challenging dismissal of that suit as confirmed by the Sub Court, Kochi in A.S. No. 5 of 2008.
2. The appellant sued the respondent/defendant for a decree for prohibitory and mandatory injunction. According to the appellant, there is a thodu passing through the suit property belonging to the respondent and leading to a puramboke thodu. On 18.11.2006, the respondent did acts which ultimately result in inundation of the suit property. Hence the suit.
3. The respondent resisted the suit on various grounds.
4. The trial court observed that the appellant has no real R.S.A. No.1340 of 2012 -:
2. :- grievance against the respondent and made certain observations against the conduct of the appellant. Consequently the suit was dismissed. That judgment and decree were confirmed by the first appellate court.
5. It is contended by the learned counsel that the finding of the courts below are not correct. It is also contended that the observations made by the appellate court concerning the conduct of the appellant are un-warranted and that the same may affect the suit pending concerning the specific performance of an agreement.
6. So far as the merit of the courts below is concerned, it is seen that the appellant was not able to project any real grievance as against the respondent so as to enable the former to get a decree as prayed for against the latter. On the facts of R.S.A. No.1340 of 2012 -:
3. :- the case, I do not find reason to interfere.
7. So far as the observations with which the appellant is aggrieved are concerned, it is seen paragraph 9 and 10 of the judgment of the trial court certain other observations are made. I am inclined to think that for a decision of the suit those observations were not necessary.
8. The apprehension of the appellant is that certain observations may adversely affect his prospects in the pending suit for specific performance.
9. The observations made by the learned Munsiff will stand confined to the decision of the suit in the trial court. I must also notice that the judgment and decree of the trial court has merged in the first appellate court and that in the judgment of the first appellate court, no such observations are made. R.S.A. No.1340 of 2012 -:
4. :- Moreover, I am sure that the court trying the suit for specific performance between the parties based on the (alleged) contract will decide that suit on the strength of the facts and evidence in that case and not based on any observations made by the learned Munsiff in his judgment which I said stand merged with the judgment and decree of the first appellate court. Resultantly, directing the court concerned where such suit for specific performance is pending to decide that suit in accordance with the facts, evidence and law involved in that case, the second appeal is dismissed. Sd/- THOMAS P.JOSEPH, JUDGE smv //True copy// P.A. To Judge