Dr. M.L. Arun Kumar v. Saramma Cheriyan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945** **OP(C) NO. 1444 OF 2023** **AGAINST THE ORDER/JUDGMENTOS 309/2014 OF III ADDITIONAL MUNSIFF** **COURT, THIRUVANANTHAPURAM** ## **PETITIONER/S:** DR. M.L. ARUN KUMAR AGED 46 YEARS S/O. MADHAVAN NADAR, RESIDING AT 'ARKHYAM', T.C. 1/1456, P.J.R.R.A.E-40, POTHUJANAM LANE, ANAMUKHAM WARD, KADAKAMPALLY VILLAGE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011 BY ADVS. D.KISHORE MEERA GOPINATH R.MURALEEKRISHNAN (MALAKKARA) ## **RESPONDENT/S:** SARAMMA CHERIYAN AGED 69 YEARS W/O.VARGHESE CHERIYAN, RESIDING AT TC 14/568(1), POTHUJANAM LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011 BY ADVS. P.B.SUBRAMANYAN P.B.KRISHNAN(K/1193/1994) SABU GEORGE(K/000711/1998) MANU VYASAN PETER(K/000652/2013) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1444 OF 2023 2 ## **JUDGMENT** The original petition is filed assailing Ext.P8 order passed by Court of the Additional Munsiff-III, Thiruvananthapuram in IA No.10/2023 in OS No.309/2014. ## 2. The brief relevant facts leading to Ext.P8 order are: - (i) The petitioner has filed the above suit for declaration of title and other consequential reliefs. The suit is resisted by the respondent through Ext.P2 written statement. - (ii) The petitioner had filed Ext.P3 application to appoint an Advocate Commissioner for the purpose of elucidating matters stated in the application. - (iii) Although the application was allowed and the petitioner paid the commission batta, the Advocate Commissioner did not inspect the OP(C) NO. 1444 OF 2023 3 property or file any report. - (iv) Later, on 23.07.2018, the respondent filed Ext.P4 application to appoint an Advocate Commissioner. The petitioner opposed the application through Ext.P4(a) objection. - (v) Yet, the court below allowed the application and the Advocate Commissioner filed Ext.P5 report in July 2019. - (vi) The petitioner filed Ext.P6 objection to Ext.P5 report as early as on 06.09.2021. But, the objection was not considered. - (vii) The suit was recently listed for trial. The petitioner filed his proof affidavit in lieu of his chief examination. Thereafter, the petitioner filed Ext.P7 application to set aside Ext.P5 report. The application was opposed by the respondent through Ext.P7(a) written objection. OP(C) NO. 1444 OF 2023 4 - (viii) The court below, by the impugned Ext.P8 order, has dismissed Ext.P7 application, solely on the ground of delay. - (ix) Ext.P8 order is palpably wrong and unsustainable in law. Hence, the original petition. 3. Heard; Sri.Kishore D., the learned Counsel appearing for the petitioner and Sri.P.B.Krishnan, the learned Counsel appearing for the respondent. 4. The point is whether Ext.P8 order warrants to be interfered with by this Court. 5. The principal grievance of the petitioner is that although his application to appoint an Advocate Commissioner was allowed by the court below as early as in the year 2014, the Advocate Commissioner did not inspect the property or file any report. The fact remains, the petitioner did not pursue the matter any further. 6. Indisputably, it was at the instance of the OP(C) NO. 1444 OF 2023 5 respondent, that the Advocate Commissioner has filed Ext.P5 report in July 2019. The petitioner objected to the report by filing Ext.P6 objection on 06.09.2021. 7. It was recently that the suit was listed for trial, and then, the petitioner filed Ext.P7 application to set aside the report. The application was resisted by the respondent through Ext.P7(a) objection. 8. The court below, by the impugned Ext.P8 order, has rejected Ext.P7 application for the sole reason that Ext.P7 application is highly belated and there is no explanation for the delay. 9. This Court finds the reasoning of the court below to be erroneous and wrong because the petitioner's objection to the report was not considered by the court below although it was filed nearly two years back. It was only when the suit was listed for trial, the petitioner deemed it fit to file Ext.P7 application and remind the court below of his objection. Be that as it may, the OP(C) NO. 1444 OF 2023 6 reasoning of the court below that Ext.P7 is belated is unjustifiable. Thus, I am of the view that the court below is to be directed to decide, after the evidence of the Advocate Commissioner is recorded, whether there is any credence in the objection raised by the petitioner in Ext.P6 objection and Ext.P7 application, and whether or not Ext.P5 report is to be set aside and another Advocate Commissioner is to be appointed. 10. The law with regard to the setting aside/ remitting a commission report is no longer resintegra in view of the law laid down by the Division Bench of this Court in **Laly Sebastian vs. K.U.Francis** [2023 (3) KHC 678]. 11. Viewed in the above legal and factual background, I am of the definite view that Ext.P8 order warrants interference by this Court. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I OP(C) NO. 1444 OF 2023 7 ## dispose of the original petition as follows: - (i) Ext.P8 order is set aside. - (ii) The court below shall, after the Advocate Commissioner's evidence is recorded, decide whether the petitioner has made out a case in Ext.P6 objection and Ext.P7 application, to set aside Ext.P5 report. - (iii) It is only after passing orders on the said Ext.P6 objection and Ext.P7 application, after adverting to Ext.P7(a) objection and the materials on record, in accordance with law that the court below shall pronounce the judgment in the suit. ## **Sd/-** **C.S.DIAS JUDGE** rkc/20.07.23 OP(C) NO. 1444 OF 2023 8 ## **APPENDIX OF OP(C) 1444/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AMENDED PLAINT IN O.S. 309/2014 DATED 19.2.2024 ON THE FILE OF MUNSIFFS COURT, THIRUVANANTHAPURAM ALONG WITH ITS TYPED COPY Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT ALONG WITH THE AFFIDAVIT IN O.S. 309/2014 DATED 16.6.2015 ON THE FILE OF MUNSIFFS COURT, THIRUVANANTHAPURAM Exhibit P2(a) TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.309/2014 DATED 31.5.2022 ON THE FILE OF MUNSIFFS COURT, THIRUVANANTHAPURAM Exhibit P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. 1900/2014 IN O.S.309/2014 DATED 19.2.2014 ON THE FILE OF MUNSIFFS COURT, THIRUVANANTHAPURAM Exhibit P4 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. 5633/2018 IN O.S.309/2014 DATED 23.7.2018 ON THE FILE OF MUNSIFFS COURT,THIRUVANANTHAPURAM Exhibit P4(a) TRUE COPY OF THE STATEMENT OF OBJECTION DATED 26.9.2018 FILED BY THE PETITIONER TO EXHIBIT P4 Exhibit P5 TRUE COPY OF THE REPORT AND PLAN ALONG WITH THE NOTICE AND MAHZAR SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. 309/2014 Exhibit P6 TRUE COPY OF THE STATEMENT OF OBJECTION DATED 6.9.2021 SUBMITTED BY THE PETITIONER AGAINST EXHIBIT P5 Exhibit P7 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.10/2023 IN O.S.309/2014 DATED 20.6.2023 ON THE FILE OF MUNSIFFS COURT, OP(C) NO. 1444 OF 2023 9 THIRUVANANTHAPURAM Exhibit P7(a) TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P7 DATED 27.6.2023 Exhibit P8 TRUE COPY OF THE ORDER DATED 30.6.2023 IN I.A. 10/2023 IN O.S. 309/2014 ON THE FILE OF ADDITIONAL MUNSIFFS COURT-III, THIRUVANANTHAPURAM