KOCHIRA KRISHNAN Vs. JOSEPH DESOUZA

JUDGEMENT

(1.) The appeal is directed against aa order of the court below by which an application, I.A. No. 160 of 1985 for taking action under O.39 R.2A of the Civil Procedure Code against the respondent therein had been dismissed by the court in the light of the disposal of the appeal itself.

(2.) The present proceedings had their origin in a suit for injunction instituted by a kudikidappukaran against the landowner. According to the kudikidappukaran he was entitled to purchase 10 cents of land. Initially his application had been allowed. It is unnecessary to refer to the subsequent and somewhat strange happenings before the authorities under the Land Reforms Act, including the mystery involved in the disappearance of the files before the Land Tribunal. (The fact that no superior authorities have paid any attention to the disappearance of Government files is itself a disturbing feature). The extent which could be purchased by the kudikidappukaran is an issue now pending consideration before this Court in C.R.P. No. 2400 of 1983. The kudikidappukaran apprehended that if the landowner constructed a wall on the northern boundary of the kudikidappu, it would cut off areas which he could legitimately obtain if his claim of 10 cents is ultimately upheld. Along with the suit an application for interim injunction was moved. The defendant landowner then undertook that he will not put up any wall till the disposal of the suit. The suit was ultimately dismissed in 1984. The kudikidappukaran then moved this Court for an injunction by an application filed in C.R.P. No. 2400 of 1983. Interim injunction was granted. Thereafter, an appeal from the Trial Court decree was filed as A.S. No. 111 of 1984. An application for injunction was moved before the appellate court also. A formal order became unnecessary in view of an undertaking given by the landowner not to construct the compound wall till the disposal of the appeal. The complaint is that the landowner constructed the compound wall on 18-1-1985, during the pendency of the appeal and violating the undertaking given before the court.

(3.) It is admitted by the landowner that the appeal was disposed of only on 21-1-1985 and that the compound wall was constructed on 18-1-1985, before the disposal of the appeal. The excuse put forward is a consent given to landowner's counsel by the kudikidappukaran's counsel, 'at the time of final hearing of the appeal', for the construction. Along with the counter affidavit of the landowner, an affidavit of his counsel Sri. James, is also produced. It is, however, evident from the records that the court has not recorded any such development. The recording of the undertaking made by the court remains unaltered. The averment that the counsel (Sri. Sreekumar) for the kudikidappukaran agreed to the construction is strongly repudiated. Having regard to the materials on record, I held that there was no such consent from counsel for kudikidappukaran, as pleaded by the landowner. This necessarily leads to the finding that the construction of the wall on 18-1-1985 was a clear contravention of the undertaking given by the landowner to the court.