Boyce Rubber Estates Private Limited v. Kodikuthy Sree Subramanya Swamy Temple and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 ``` ## `OP(C) NO. 492 OF 2020` ``` IN O.S.NO.231/2014 OF MUNSIFF COURT, PEERUMADE. ``` ## `PETITIONER/PETITIONER/PLAINTIFF:` ``` BOYCE RUBBER ESTATES PRIVATE LIMITED, HAVING ITS REGISTERED OFFICE AT 6/1183, KUNHIPARI BUILDING, CHEROOTTY ROAD, KOZHIKODE - 673 032 REPRESENTED BY KURIAN GEORGE, AGED 50 YEARS, S/O. N.V. GEORGE, NIRUVATH HOUSE, VAIRAMALA, VAZHOOR VILLAGE, CHANGANACHERRY TALUK, NOW RESIDING AT MANAGER'S BUNGLOW, 35TH MILE KARA, KOKKAYAR VILLAGE, PEERMADE TALUK ``` ``` BY ADVS.SRINATH GIRISH V.NAMITHA ``` ## `RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS:` ``` 1KODIKUTHY SREE SUBRAMANYA SWAMY TEMPLE, KODIKUTHY KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, REPRESENTED BY ITS SECRETARY, RANJEESH, AGED ABOUT 29 YEARS, S/O. RAGHUNATHAN, VELIYIL HOUSE, MULAMKUNNU KARA, KOKKAYAR VILLAGE, PEERMADE TALUK 685 531 ``` ``` 2RANJEESH, AGED 29 YEARS, S/O. RAGHUNATHAN, VELIYIL HOUSE, MULAMKUNNU KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, 685 531 3BIJO T.B., AGED 33 YEARS, S/O. BALAKRISHNAN, THANNIYATHU HOUSE, KODIKUTHY KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, 685 531 ``` ``` O.P.(C)No.492/2020 ``` ``` -:2:- ``` ``` 4MANESH KUMAR, AGED 30 YEARS, S/O. T.G. MOHANAN, THEKKEMELETHIL HOUSE, KODIKUTHY KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, 685 531 5ARUNKUMAR, AGED 25 YEARS, S/O. N.P.SADHAN, NIVRUTHIYILHOUSE, KODIKUTHY KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, 685 531 6BALAKRISHNAN, AGED 62 YEARS, S/O. KRISHNANKUTTY, THANNIYATHU HOUSE, KODIKUTHY KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, 685 531 7RAJU, AGED 46 YEARS, S/O. BHASKARAN, MUDAVELIL THEKKETHIL HOUSE, KODIKUTHY KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, 685 531 8TAJU, AGED 46 YEARS, S/O. BHASKARAN, MUDAVELIL THEKKETHIL HOUSE, KODIKUTHY KARA, KOKKAYAR VILLAGE, PEERMADE TALUK, 685 531 ``` ``` BY ADVS.SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF SHRI. ANOOP KRISHNA SRI.D.SREEKANTH SRI.DYUTHISENAN ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.492/2020 ``` ``` -:3:- ``` Dated this the 2[nd] day of June,2022 ## **J U D G M E N T** The original petition is filed to set aside the order in I.A.No.1/2020 in O.S. No.231/2014 (Ext.P9) of the Court of the Munsiff, Peermade. 2. The petitioner’s case, in the nutshell, in the memorandum of the original petition, is that; the petitioner is the plaintiff in above suit, filed for a decree of permanent prohibitory injunction against the respondents – defendants – inter alia, to restrain them from entering into plaint ‘A’ scheduled property. The defendants have contested the suit by filing a written statement and a counter claim. The petitioner has filed additional pleadings to the counter claim. On the basis of the pleadings on record, the court below formulated three issues. The petitioner moved Ext.P5 application, seeking recasting of the formulated issues. ``` O.P.(C)No.492/2020 ``` ``` -:4:- ``` Nonetheless, the court below proceeded with the trial. PW1 was examined on the side of the petitioner, and the case was taken up for judgment. Then, the court below, by order dated 16.01.2020(Ext.P6), suo-motu reopened the suit and recasted the issues by formulating four additional issues. Consequently, the plaintiff has filed Ext.P7 application, to order the Advocate Commissioner to properly identify the plaint ’A’ and ‘B’ scheduled properties with reference to the title deeds and locate its boundaries. However, the court below by the impugned Ext.P9 order has dismissed the application on the ground that the issues that have been recasted do not relate to the identification of the plaint scheduled properties. Hence, the original petition. 3. Heard; the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. ``` O.P.(C)No.492/2020 ``` ``` -:5:- ``` 4. It is undisputed by both sides that, the petitioner and the respondents have raised claims over the petition and counter claim scheduled properties. 5. The learned counsel appearing for the petitioner has handed over the objection dated 25.07.2019 filed by the learned counsel for the respondents before the Trial Court, to the commission report, wherein the respondents have specifically contended that the Advocate Commissioner has not identified the boundaries of the land in possession of the first respondent temple, and that, in view of the issues involved in the case, the identification of the property is imperative. 6. The petitioner has also filed its objection to the commission report. Nevertheless, dehors the objections raised by both sides to the commission report, the trial court proceeded with the trial and took up the matter for judgment. It is at that stage, the ``` O.P.(C)No.492/2020 ``` ``` -:6:- ``` trial court felt that the issues had to be recasted and reopened the case, and formulated four additional issues as evident by Ext.P7 order. 7. It was at that juncture that the petitioner has filed the application to depute the same Advocate Commissioner, to identify the properties belonging to both parties. 8. It is no longer res integra that in a suit for injunction, the identification of property is mandatory, in the light of the law laid down by this Court in **Pattathari Kuttiraman v. Puthukkudi Narayanan** [2010(3) KHC136]. 9. In the present case, both the petitioner and the respondents have specifically raised their objections to the commission report, that the properties scheduled in the plaint and counter claim have not properly identified by the Advocate Commissioner. ``` O.P.(C)No.492/2020 ``` ``` -:7:- ``` 10. Undisputedly, both parties claim decrees of injunction on the basis of possession. Therefore, going by the law laid down by this Court and the objection raised by the parties, and also to avoid multiplicity of proceedings, I am of the firm view that Ext.P9 order dismissing the application is erroneous and wrong. 11. In the totality of the facts and circumstances of the case, I am inclined to exercise the supervisory jurisdiction of this Court as enshrined under Article 227 of the Constitution of India and interfere with the impugned order. Accordingly, I set aside Ext.P9 order. In the result, the original petition is allowed. Ext.P9 order is set aside and I allow Ext.P7 application. The petitioner and respondents would also be at liberty to file their work memos before the Advocate Commissioner, who shall ascertain and report the matters mentioned in the work memos. On a consideration of the fact that the suit is of the year ``` O.P.(C)No.492/2020 ``` ``` -:8:- ``` 2014, I direct the Trial Court to dispose of O.S.No.231/2014, in accordance with law and as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a certified copy of this judgment. Sd/- ## **C.S.DIAS,JUDGE** DST/02.06.22 //True copy/ P.A.To Judge ``` O.P.(C)No.492/2020 ``` ## `-:9:-` ## `APPENDIX` ``` PETITIONER EXHIBITS: ``` - `EXHIBIT P1` - `TRUE COPY OF THE PLAIN IN O.S. NO. 231/2014 ON THE FILE OF THE HON'BLE MUNSIFF COURT, PEERMADE.` - `EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S. NO.231/2014 ON THE FILE OF THE HON'BLE MUNSIFF COURT, PEERMADE.` - `EXHIBIT P3 TRUE COPY OF THE ADDITIONAL PLEADINGS FILED BY THE PETITIONER IN O.S. NO.231/2014 ON THE FILE OF THE HON'BLE MUNSIFF COURT, PEERMADE.` - `EXHIBIT P4 TRUE COPY OF THE ORDER FORMULATING ISSUES PASSED BY THE HON'BLE MUNSIFF COURT, PEERMADE IN O.S. NO.231/2014.` - `EXHIBIT P5 A TRUE COPY OF I.A. NO.905/2019 IN O.S. NO.231/2014 FILED BY THE PETITIONER.` - `EXHIBIT P6 TRUE COPY OF ORDER FORMULATING ISSUES DATED 16.01.2020 PASSED BY THE HON'BLE MUNSIFF COURT, PEERMADE IN O.S. NO.231/2014.` - `EXHIBIT P7 TRUE COPY OF I.A. NO.1/2020 IN O.S. NO.231/2014 ON THE FILE OF THE HON'BLE MUNSIFF COURT, PEERMADE.` - `EXHIBIT P8 TRUE COPY OF THE COUNTER FILED BY THE DEFENDANTS TO EXT.P6 APPLICATION.` - `EXHIBIT P9 TRUE COPY OF THE ORDER DATED 27.01.2020 IN I.A. NO.1/2020 IN O.S. NO.231/2014 PASSED BY THE HON'BLE MUNSIFF COURT, PEERMADE.` ``` RESPONDENT’S EXHIBITS: NIL ```