A. Rukhmavathi vs Pallikki Kunhambu Nair
2021 Latest Caselaw 20691 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
 TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                     RSA NO. 293 OF 2021
AGAINST THE ORDER/JUDGMENT IN AS 21/2017 DATED 7.8.2018 OF
SUB COURT, HOSDRUG, KASARGOD ARISING FROM THE ORDER OF THE
MUNSIFF'S COURT, HOSDURG IN OS NO.129/1997 DATED 31.7.2007
APPELLANT/APPELLANT/PLAINTIFF:
         A. RUKHMAVATHI
         AGED 70 YEARS
         W/O. LATE T. DAMODARAN NAIR, AGRICULTURIST, NOW
         RESIDING AT CHAITHANYA, PRATHIBHA NAGAR, P.O.
         PARAPPA, VELLARIKUNDU TALUK, KASARAGOD DISTRICT,
         PIN - 671 533.

            BY ADVS.
            T.SETHUMADHAVAN (SR.)
            SMT.DEEPA NARAYANAN



RESPONDENTS/RESPONDENTS/DEFENDANTS:
    1     PALLIKKI KUNHAMBU NAIR, AGED 76 YEARS
          S/O. LATE KOYITHARA KRISHNANAN NAIR,
          AGRICULTURIST, RESIDING AT PRATHIBHA NAGAR, P.O.
          PARAPPA, HOSDURG TALUK, KASARAGOD DISTRICT-
          671533.

    2       CHEROOTTA THAMBAYI AMMA,
            AGED 71 YEARS, W/O. PALLAKKI KUNHAMBU NAIR,
            AGRICULTURIST, RESIDING AT PRATHIBHA NAGAR, P.O.
            PARAPPA, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
            671533.

            ADV.ANANTHA KRISHNAN KARTHA FOR R1 & R2
            ADV.ANIL D.KARTHA FOR R1 & R2


     THIS     REGULAR   SECOND   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 30.09.2021, THE COURT ON 05.10.2021 DELIVERED
THE FOLLOWING:
 RSA 293/2021
                                   2

                           N.ANIL KUMAR, J.
                            ------------------------
                          RSA No.293 of 2021
                       ----------------------------------
               Dated, this the 5th day of October, 2021

                           JUDGMENT

The appellant is the plaintiff in OS No.129/1997 on the

files of the Munsiff's Court, Hosdurg (hereinafter referred to

as the "trial court"). The suit was for permanent prohibitory

injunction restraining the defendants and their men from

trespassing into the suit property or in any way interfering

with the plaintiff's peaceful possession and enjoyment.

2. By the judgment and decree dated 7.8.2002, the

learned Munsiff dismissed the suit with costs. Challenging

the judgment and decree, the plaintiff preferred AS

No.36/2002 before the Sub Court, Hosdurg (hereinafter

referred to as the "First Appellate Court"). The learned Sub

Judge remanded the suit with a direction to appoint a fresh

Commissioner and to get a new plan and report. RSA 293/2021

3. After the remand, the trial court dismissed the

suit finding that as the plaintiff is not having possession

over the pliant schedule property, an injunction cannot be

granted. Challenging the judgment and decree, the plaintiff

filed AS No.21/2017 before the First Appellate Court. The

First Appellate Court dismissed the appeal confirming the

judgment and decree of the trial court. Hence, this Regular

Second Appeal.

4. When this appeal came up for admission, the

learned Senior Counsel, Sri.Sethumadhavan, submitted

that the appellant/plaintiff sought for injunction simplicitor in

a case where rival claim of titles is involved. According to

the learned Senior Counsel, both the trial court and the first

appellate court dismissed the suit holding that the plaintiff

has not succeeded in proving possession over the suit

property on the date of the suit. The learned Senior

Counsel further submitted that proper remedy is to institute RSA 293/2021

a suit for declaration of title and consequential injunction

rather than seeking a decree for permanent prohibitory

injunction. For the purpose of enabling the appellant/

plaintiff to seek appropriate remedies before the court, in

accordance with the law, notice before admission was

sought for. Accordingly, notice was issued.

5. The respondents entered appearance. Heard the

learned counsel Senior Counsel for the appellant and the

learned counsel for the respondents.

6. The learned Senior Counsel for the appellant

contended that in a suit for injunction, recurring cause of

action is available to the plaintiff and the plaintiff is

competent to file a fresh suit as and when cause of action

arises or there is a fresh threat or interference. The

learned Senior Counsel for the appellant further contended

that the suit was mainly dismissed by the two courts below

for the simple reason that in a case where the defendant RSA 293/2021

has denied title of the plaintiff, it is absolutely essential on

the part of the plaintiff to amend the plaint seeking

declaration of the title also over the plaint schedule

property. The suit was dismissed mainly on the ground that

no declaratory relief was sought for by the plaintiff.

7. On the other hand, the learned counsel for the

respondents contended that the attempt of the appellant is

to get over the bar contemplated under Section 11 and

Order-II Rule-2 of the Code of Civil Procedure (CPC).

According to the learned counsel for the respondents, the

appellant is legally precluded from filing a fresh suit for

which no permission can be granted.

8. It is a fact that the suit was dismissed for the

reason that the plaintiff failed to amend the plaint

incorporating a prayer for declaration of title as well. It is

true that in an injunction suit, when title is denied, it is the

duty of the plaintiff to amend the plaint incorporating the RSA 293/2021

prayer for declaration of title as well. Since it was not done,

the trial court dismissed the suit for technical reasons.

9. It is not necessary on the part of this Court to

analyse the application of Section 11 and Order-II Rule-2 of

the CPC in this case as it is for the Court which tries the

case to decide the question involved. It is not correct to

permit the appellant to withdraw the suit with liberty to

institute the suit as contemplated under Order-XXIII of the

CPC. However, in view of the submission made by the

learned Senior Counsel, the appellant is at liberty to

institute a fresh suit for appropriate reliefs, in accordance

with law, if so advised. In case, such a suit is filed by the

appellant, the trial court shall examine the contentions in

the suit and pass appropriate orders, in accordance with

law. In fact, no substantial questions of law are involved in

this appeal. This appeal is liable to be dismissed.

In the result, this appeal is dismissed with liberty to the RSA 293/2021

appellant to file comprehensive suit incorporating

appropriate reliefs, in accordance with law, if so advised. In

case, such a suit is filed, the trial court is at liberty to decide

all the issues, including Order-II Rule-2 and Section 11 of

the CPC, in accordance with law. There would be no order

as to costs. Pending applications, if any, shall stand

closed.

Sd/-

(N.ANIL KUMAR, JUDGE) jg