Achutha Panicker v. Jacob, Anthony, Chathu, Thankamani and Kochuraman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **OP(C) NO. 743 OF 2013** **AGAINST THE ORDER/JUDGMENT OS 1285/2009 OF PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA** ## **PETITIONER/PLAINTIFF IN OS.:** **ACHUTHA PANICKER S/O.POTTAYIL PARUKUTTIYAMMA, KARALAM VILLAGE & DESOM, MUKUNDAPURAM TALUK, THRISSUR DIST, REP BY HIS POWER OF ATTORNEY RAJAGOPALAN, S/O.JANAKI APPASYAMA, KOTTUPALE THEKKOOT, KARALAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DIST** ## **BY ADV DR.K.P.PRADEEP** ## **RESPONDENTS:** |**1**|**JACOB**| |---|---| ||**S/O.KURUTHUKULANGARA CHACKO,**| ||**NANDI DESOM, KARALAM VILLAGE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT-PIN-680003**| |**2**|**ANTHONY**| ||**S/O.KURUTHUKULANGARA CHACKO,**| ||**NANDI DESOM, KARALAM VILLAGE,**| ||**MUKUNDAPURA TALUK,**| ||**THRISSUR DISTRICT-PIN-680003**| |**3**|**CHATHU**| ||**S/O.PONNARI KARAPPAKUTTY,**| ||**NANDI DESOM,**| ||**KARALAM VILLAGE, MUKUNDAPURAM TALUK,**| ||**THRISSUR DIST, PIN-680003**| |**4**|**THANKAMANI**| ||**W/O.PONNARI KUNJIVELAPPAN, ,**| ||**NANDI DESOM, KARALAM VILLAGE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DIST, PIN-680003**| |**5**|**KOCHURAMAN**| ||**S/O.KOLLAYIL MANIKKAN,,**| ||**NANDI DESOM, KARALAM VILLAGE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DIST, PIN-680003**| ||**BY ADVS.**| ||**SRI.RENJITH THAMPAN SR.**| ||**SMT.P.R.REENA**| **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE** **SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)NO.743 of 2013** **2** ## **JUDGMENT** ## **Dated this the 20[th] day of October, 2022** Aggrieved by Ext.P15 order passed in I.A.No.2182/2011 in O.S.No.1285/2009 of the Court of the Principal Munsiff, Irinjalakkuda, the plaintiff/counter claim respondent has filed the original petition. The respondents are the defendants/counter claim petitioners before the court below. 2. The skeletal facts, relevant for the determination of the original petition, are: the petitioner has filed the suit, against the respondents, for a decree of permanent prohibitory injunction. The suit was originally decreed ex-parte on 13.09.2010. However, the decree was set aside on the application made by the respondents. An Advocate Commissioner was appointed, who conducted a local inspection and filed Ext.P3 report. On the application made by the respondents, the Commissioner re-inspected the **O.P.(C)NO.743 of 2013** **3** property and filed a supplementary report and sketch. On the undertaking made by the respondents, Ext.P6 order of temporary injunction was passed against them. However, they violated the said order and were prosecuted under Order 39 Rule 2 A of the Code of Civil Procedure, as per Ext.P8 order. On 06.01.2010, the petitioner filed his objection to Ext.P4 report of the Advocate Commissioner. During the trial, the respondents filed Ext.P13 application, to remit the commission report for measuring the properties and to identify a pathway. The petitioner objected to the application through Ext.P14 written objection. The court below, by the impugned Ext.P15 order, without adverting to the objections raised by the petitioner in Ext.P4 or P14 objections by a cryptic order, allowed Ext.P13 application. Ext.P15 order is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.K.P.Pradeep, the learned counsel appearing for the petitioner and Smt.P.R.Reena, the **O.P.(C)NO.743 of 2013** ## **4** learned counsel appearing for the respondents. 4. The question is whether there is any error in Ext.P15 order. 5. On an analysis of the pleadings and materials on record, it is seen, initially, the Advocate Commissioner had filed Ext.P3 report. Thereafter, at the behest of the respondents, Ext.P4 supplemental report and sketch were filed. The petitioner filed Ext.P5 objection to Ext.P4 report and sketch. The court below did not consider the objection 6. During trial, the respondents filed Ext.P13 application to remit Ext.P4 report, for the purpose of measuring the plaint schedule and the counter claim schedule property and to locate a pathway. The petitioner objected to the same through Ext.P14 written objection. 7. The court below, by the impugned Ext.P15 order, held as follows:- “This is an application filed under Order 26 Rule 9 & order 39 Rule 7 of CPC for **O.P.(C)NO.743 of 2013** **5** appointment of Advocate Commissioner with the help of surveyor to measure the plaint schedule property and counter claim schedule property. The respondent filed counter stating that this petition is not maintainable for the reason that it is only to prepare evidence regarding existence of way. Heard. Having regard to the circumstance of the case, petition is allowed. Adv.Sadanandan.K. is appointed as commissioner. Pay batta of Rs.1750/- directly to the commissioner. Deposit batta of Rs.800/- towards batta of qualified surveyor. Await commission report. 25.2.2013.” 8. A reading of the above order, it is discernible that the court below has neither adverted to Ext.P5 objection to Ext.P4 report nor Ext.P14 objection to Ext.P13 application. Instead, by a cryptic order, the court below has allowed Ext.P13 application. 9. I find the course adopted by the court below to be erroneous and wrong, and in violation to the law laid down by this Court in **Swami Premananda Bharathi v. Swami Yogananda Bharathi [1985 KLT** **O.P.(C)NO.743 of 2013** **6** **144]** and **State v. Kodakkat Pocker and Others [1987 (1) KLT 714]** . Thus, I am of the definite view that Ext.P15 warrants to be interfered by this Court invoking its supervisory powers under Article 227 of the Constitution of India. In the result, I allow the original petition in the following manner:- i) Ext.P15 order is set aside. ii) The court below is directed to re-consider Ext.P13 application, after adverting to Ext.P5 objection filed to Ext.P4 report and Ext.P14 objection filed to Ext.P13 application, and the law laid down in the aforecited decisions, and then pass orders on Ext.P13 application. iii) The parties are directed to appear before the court below through counsel on 21.11.2022. iv) The court below shall, after hearing the counsel appearing for the parties, consider and dispose of Ext.P13 application, as observed above, in accordance **O.P.(C)NO.743 of 2013** **7** with law, as expeditiously as possible at any rate within a period of two months from the date of appearance of the parties. v) As the suit is of the year 2009, the court below shall make every endeavour to dispose of O.S.No.1285/2009, in accordance with law, as expeditiously as possible. **Sd/C.S.DIAS Judge** **==> picture [412 x 69] intentionally omitted <==** NR/20/10/2022 **8** ## **O.P.(C)NO.743 of 2013** ## **APPENDIX** **PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT DATED 21-10-2009 IN OS NO 1285 OF 2009 FILED BY THE PETITIONER ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** - **Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE RESPONDENTSS DATED 10-2-2010 IN OS NO 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT IRINJALAKUDA** - **Exhibit P3 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 31-10-2009 IN IA NO 3247 OF 2009 IN OS 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT IRINJALAKUDA** - **Exhibit P4 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 17-11-2009 IN OS NO. 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** - **Exhibit P5 TRUE COPY OF THE OBJECTION DATED 6-1-2010 TO REPORT OF THE ADVOCATE COMMISSIONER IN IA 3385 OF 2009 IN OS NO 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT IRINJALAKUDA** - **Exhibit P6 TRUE COPY OF THE ORDER DATED 21-11-2009 IN IA NO 3246 OF 2009 IN OS NO 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** - **Exhibit P7 TRUE COPY OF THE REPLICATION 17-5-2010 FILED BY THE PETITIONER IN COUNTER CLAIM IN OS NO.1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** - **Exhibit P8 TRUE COPY OF THE ORDER DATED 13-09-2010 IN IA NO 2281 OF 2010 IN OS NO. 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 13-09-2010 IN OS NO.1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** - **EXHIBIT P10 TRUE COPY OF THE IA 838 OF 2011 FILED BY THE RESPONDENTS IN OS NO 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** **EXHIBIT P11 TRUE COPY OF THE OBJECTION DATED 26-2-2011 FILED BY THE PETITIONER IN IA NO 838 OF 2011 IN OS NO 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT IRINJALAKUDA** ## **O.P.(C)NO.743 of 2013** ## **9** **EXHIBIT P12** **TRUE COPY OF THE ADDITIONAL STATEMENT DATED 20-06-2011 FILED BY THE PETITIONER IN OS NO.1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** **EXHIBIT P13** **TRUE COPY OF THE IA 2182 OF 2011 IN OS NO 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** **EXHIBIT P14** **TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER AGAINST IA 2182 OF 2011 IN OS NO 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** **EXHIBIT P15** **TRUE COPY OF THE ORDER DATED 15-2-2013 IN IA NO.2182 OF 2011 IN OS NO. 1285 OF 2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA**