Relief Not Prayed For By Plaintiff Can't Be Granted Particularly When Defendant Didn't Get Opportunity To Resist It: Kerala High Court

Justice K. Babu observed:

“It is trite that consideration for the grant of relief when there is no prayer for that relief or no pleading to support such a relief, and also when the defendant had no opportunity to resist and oppose such relief would amount to miscarriage of justice.”

The petition was filed by Trivananthapuram Citizens Protection Forum against M.A.Sathar. The allegation was that he constructed a structure near the Pazhavangadi Fort encroaching upon government land. Pazhavangadi Fort is declared as an ancient monument by the Archaeological Department.

Sathar was given Kuthakapattom rights in a property adjacent to the fort. He has built a 2- room building there. It was alleged that he made a structure making the western wall of the fort as the eastern wall of the structure.

The suit was originally filed before the Additional Munsiff Court seeking a mandatory injunction to remove the encroachment upon the Fort.

The land was assigned to Sathar as Kuthakapattom. The lease gave permission to construct only a temporary shed on the land. The Government pleaded that when he constructed a permanent building, he violated the conditions of lease.

The Commission report stated that there is a marginal difference of 11 inches between the wall of the building and the fort. A pillar between the two properties conceals the view of the Fort. Further, window on the western wall of the Fort is also hidden due to the defendant.

The Corporation informed the Court that extensions were made on the existing construction without obtaining necessary permit.

The III Additional District Court, Trivandrum while haring the appeal granted a mandatory injunction to demolish the unauthorized constructions. Further, the court granted an injunction to resume the lease back to the State.

The High Court observed that there was no plea to cancel the lease. No pleadings were made or evidence was submitted in the matter. The defendant was not aware that the lease would be an issue in trial. The petitioner did not make an argument asking the Court to take notice of the alleged violations of the kuthakapattam.

It thus held that the order of cancelling the lease will not stand.

Counsel for Appellants: Advocates Gopakumar R. Thaliyal, Eby George

Counsel for Respondents: Government Pleader Adv. Jayan, Advocates N. Nandakumara Menon (Sr.), Suman Chakravarthy, John K. Joseph, Manjusha Mohandas, K. Nithya, R. S. Ajith Kumar,

Case No: R.S.A. No. 1406 of 2004

Case Title: M. A. Sathar and Others v Thiruvananthapuram Citizens Protection Forum and Others

Citation: 2024 LiveLaw (Ker) 425