Biju and Neena Biju v. Varghese S/o Chiriyankandath Karakkad Ouseph Marathakkara Village, Padavara Desom, Thrissur Taluk

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934** **OP(C).No. 1145 of 2012 (O)** **-------------------------I.A.NO.702/2012 IN OS.1998/2008 of PRL.MUNSIFF COURT,THRISSUR** **PETITIONER(S)/PETITIONERS/DEFENDANTS:** **-------------** **1. BIJU, AGED 35 YEARS S/O.THERATTIL VARUNNI, OLLUR VILLAGE PADAVARAD DESOM, THRISSUR TALUK.** **2. NEENA BIJU W/O.BIJU, THERATTIL HOUSE, OLLUR VILLAGE PADAVARAD DESOM, THRISSUR TALUK.** **BY ADV. SRI.P.K.SAJEEV** **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **--------------** **VARGHESE S/O.CHIRIYANKANDATH KARAKKADA OUSEPH MARATHAKKARA VILLAGE, PADAVARAD DESOM THRISSUR TALUK, P.O.MARATHAKKARA, PIN-680 320.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXHIBIT P1- TRUE COPY OF THE PLAINT IN O.S.1998/2008 ON THE FILES OF PRINCIPAL MUNSIFF COURT, THRISSUR.** **EXHIBIT P2- TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.1998/2008.** **EXHIBIT P3- TRUE COPY OF THE APPLICATION IN I.A.278/2010 IN O.S.NO.1998/2008.** **EXHIBIT P4- TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 06.11.2010 IN O.S.NO.1998/2008.** **EXHIBIT P5- TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 27.9.2011 IN O.S.NO.1998/2008.** **EXHIBIT P6- TRUE COPY OF THE OBJECTION TO THE REPORT OF THE ADVOCATE COMMISSIONER IN O.S.NO.1998/2008.** **EXHIBIT P7- TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.702/2012 IN O.S.NO.1998/2008** **EXHIBIT P8- TRUE COPY OF THE COUNTER IN I.A.NO.702/2012 IN O.S.NO.1998/2008.** **EXHIBIT P9- TRUE COPY OF THE ORDER DATED 10.02.2012 IN I.A.NO.702/2012 IN O.S.NO.1998/2008.** ## **RESPONDENTS' EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** ## **S.S.SATHEESACHANDRAN, J. ------------------------------O.P.(C).NO.1145 OF 2012 (O) ----------------------------------Dated this the 29[th] day of March, 2012** ## **J U D G M E N T** Petitioners are the defendants in O.S.No.1998 of 2008 on the file of the Principal Munsiff's Court, Thrissur. That suit is one for fixation of boundary and recovery of possession. An advocate commissioner appointed by the court after conducting local inspection and measuring the property with the assistance of a qualified surveyor filed a report and plan before the court. Petitioners/defendants had raised objections to that report and plan. Those objections were pressed into service seeking its remission, but, the learned Sub Judge turned down that request vide Ext.P9 order. Correctness and legality of Ext.P9 order is challenged in this original petition invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. **O.P.(C).NO.1145/2012** **2** 2. Going through Ext.P9 order with reference to the submissions made by the learned counsel for the petitioners and also other materials tendered with the original petition, I find, interference with that order invoking the visitorial jurisdiction of this Court is not called for. The learned Munsiff in the operative portion of Ext.P9 order has stated thus: _“In the result, this application is dismissed. However it is made clear that the observations and conclusions made in this order are made only for the purpose of disposal of this application. Those observations and conclusions will not be binding on the court when issues are tried.”_ In making such observations as indicated above, it appears, the learned Munsiff has not taken note that the orders passed by that court after considering the objections raised to the commission report, whatever that be, cannot be brushed aside by that court as observations made which are not binding at a later stage if any finding on the merit of the report has been made in **O.P.(C).NO.1145/2012** **3** such order. So far as the orders passed on interlocutory applications there are two types, one intended to maintain and preserve the status quo till the lis is decided by the court and the other, at different stages of the lis, depending upon the controversy involved, which often affect the rights and liabilities of the parties thereto. So far as the second type of interlocutory orders, those orders are not liable to be varied by the court, but, continued to remain in force and binding on the parties. Only in respect of those interlocutory orders which are intended to preserve the status quo till the lis is decided, the question of varying them at a later stage, if need be, would arise for consideration. That has been explained by the Apex Court in **Arjun Singh v. Mohindra Kumar and others (AIR 1964 SC 993)** , which reads thus: _13. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced_ **O.P.(C).NO.1145/2012** **4** _by the normal delay which the proceeding before the court usually take. They do not in that sense decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O.IX, R.7, would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the_ **O.P.(C).NO.1145/2012** **5** _appellate Court. In that sense, the refusal of the Court to permit the defendant to "set the clock back" does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issues, whereas in the other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the Court._ **O.P.(C).NO.1145/2012** **6** So much so, what has been stated in the operative portion by the learned Munsiff that the observation made by him in Ext.P9 order are made only for the purpose of disposal of the application is not correct. If he has not made any binding observations on the acceptability of the report, it is open to him to express a view that the acceptability of the report will be considered at a later stage at trial after taking evidence. Whatever that be, in the given facts of the case, leaving aside the aforesaid observations made in Ext.P9 order, which are found to be incorrect, it is only to be stated the challenge raised against the commission report by the defendants, at this stage, that too, without examining the commissioner to substantiate their objections could not have been entertained, and in that view of the matter, I find that Ext.P9 order does not call for any interference. However, I make it clear that it is open to the petitioners to substantiate their objections to the commission report at the stage of trial, and if steps are taken to do so, the **O.P.(C).NO.1145/2012** **7** learned Munsiff shall consider and decide the acceptability of the report untrammeled by any of the observations made in Ext.P9 order and decide the acceptability of that report in accordance with law. Subject to the above observations, the original petition is disposed of. ## **S.S.SATHEESACHANDRAN JUDGE** prp