Mini P. v. Rajendran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938** **OP(C).No. 1412 of 2016 (O) ---------------------------** **IA.NO.1347/2015 IN OS 45/2012 OF MUNSIFF'S COURT, PARAVUR, KOLLAM** **.....** **PETITIONER(S): -------------** **MINI P. W/O. K.SABU, CHARUVILA PUTHEN VEEDU, EDANADU P.O., KARAMCODE, KOLLAM DISTRICT,** **NOW RESIDING AT PAPPATTU QUARTERS, MAKKARAPARAMBA, AMBALA KAVALA, MAKKARA PARAMBA P.O., PIN-676 507.** **BY ADV. SRI.K.T.SHYAMKUMAR** **RESPONDENT(S):** **--------------** ## **1. RAJENDRAN,** **S/O. LATE SUKUMARAN, SANTHOSH BHAVAN, EDANADU P.O., KARAMCODE, KOLLAM DISTRICT-691 579.** **2. SUJATHA, W/O. RAJENDRAN, SANTHOSH BHAVAN, EDANADU P.O., KARAMCODE, PIN-691 579. 3. MOHANAN, AGED 46 YEARS, S/O. LATE SUKUMARAN, PLAVILA HOUSE, EDANADU P.O., KARAMCODE, KOLLAM DISTRICT-671 579.** ## **4. VISWAMOHAN,** **S/O. LATE SUKUMARAN, CHARUVILA PUTHEN VEEDU, EDANADU P.O., KARAMCODE, KOLLAM DISTRICT-691 578, NOW RESIDING AT SANTHOSH NIVAS, CHIRAKKARATHAZHAM, CHIRAKKARATHAZHAM P.O., CHATHANNUR, KOLLAM DISTRICT.** **5. RAMACHANDRAN, S/O. LATE SUKUMARAN, RANI NILAYAM, C/O. RADHAMANI, KARAMCODE, KOLLAM DISTRICT-691 579.** **msv/** **-2-** **-2-** ## **OP(C).No. 1412 of 2016 (O) ---------------------------** **6. MANOHARAN, S/O. LATE SUKUMARAN, THEKKENVILA HOUSE, NEAR MUCHODE TEMPLE, MADAVOOR, PALLIKKAL, MADAVOOR P.O., PIN-695 602.** **7. MONU C.S., S/O. CHANDRASEKHARAN, CHARUVILA PUTHEN VEEDU, EDANADU P.O., KARAMCODE, KOLLAM DISTRICT-691 578, RESIDING AT SANTHOSH NIVAS, CHIRAKKARATHAZHAM, CHIRAKKARATHAZHAM P.O., CHATHANNUR, KOLLAM DISTRICT.** **8. SONU C.S., S/O. CHANDRASEKHARAN, CHARUVILA PUTHEN VEEDU, EDANADU P.O., KARAMCODE, KOLLAM DISTRICT-691 578, RESIDING AT SANTHOSH BHAVAN, CHIRAKKARATHAZHAM, CHIRAKKARATHAZHAM P.O., CHATHANNUR, KOLLAM DISTRICT.** **R1 BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(C).No. 1412 of 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 COPY OF THE PLAINT IN OS NO.45/2012 MUNSIFF COURT, PARAVUR.** - **P2 COPY OF THE DISCHARGE SUMMARY OF THE MATHA HOSPITAL, KOTTAYAM DTD.6.4.2013.** - **P3 COPY OF THE IA NO.1347/2015 FILED BY THE PETITIONER.** - **P4 COPY OF THE ORDER IN IA NO.1347/2015.** - **P5 COPY OF THE COUNTER AFFIDAVIT IN OP NO.788/2016.** - **P6 COPY OF THE DISCHARGE SUMMARY FROM THE MATHA HOSPITAL, KOTTAYAM DTD.26.3.2013.** - **P7 COPY OF THE DISCHARGE CARD FROM THE MATHA HOSPITAL, KOTTAYAM DTD.13.5.2013.** ## **RESPONDENT(S)' EXHIBITS:** **------------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------- **O.P.(C). No.1412 of 2016** ------------------------------------------------- _Dated this the 5[th] day of September, 2016_ ## **JUDGMENT** This petition is filed by the petitioner challenging Ext.P4 order dismissing the application for appointing of a commissioner under Article 227 of the Constitution of India. 2. It is alleged in the petition that petitioner is a Government Higher Secondary School teacher since 6[th] August, 2007 and residing in Malappuram District. Respondents 1, 3, 4, 5 and 6 are the brothers of the petitioner and second respondent is the wife of the first respondent. Respondents 7 and 8 are sons of petitioner's deceased sister. Petitioner's father later Sukumaran settled 30 cents of property in favour of the petitioner as per settlement deed No.5942/01 and on the basis of the same, mutation was effected and he is paying tax in respect of the property. After marriage, first and second respondents started to prevent the petitioner and her husband from enjoying the property peacefully. So the petitioner filed Ext.P1 suit as O.S.No.45/2012 on the file of the Munsiff Court, Paravur of Kollam District for declaration of title and possession, fixation of boundary and other consequential reliefs. The evidence in this case was started and is over. Petitioner children were undergoing treatment for several diseases evidenced by Ext.P2 discharge summary and their counsel _**O.P.(C). No.1412 of 2016**_ 2 Sri.Raju Paravur, suffered a stroke and recently passed away and the case was being conducted by his junior advocate. When a fresh advocate was appointed or engaged to conduct the case on the death of their previous counsel, he advised them to take out a commission to fix the boundary without which the proper adjudication could not be possible. So they filed Ext.P3 application as I.A.1347/2015 for appointing a commissioner and with the help of the Village officer to identify the property and fix the boundary of the plaint schedule property. The third respondent filed Ext.P5 counter affidavit and the learned Munsiff dismissed the application vide Ext.P4 order. The petitioner was admitted in Matha Hospital for a surgery evidenced by Ext.P6 and the children also undergoing treatment evidenced by Ext.P7. The delay in taking out commission is not willful and without a commissioner being taken out in a case like this, proper adjudication will not be possible. So the petitioner has no other remedy except to approach this court, seeking the following reliefs: _(i) set aside Ext.P4 order and allow the Ext.P3 I.A.1347/2015 of the Munsiff Court, Pparavoor, Kollam._ _(ii) grant such other further reliefs which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case._ 3. Heard Sri.Shyam Kumar, counsel appearing for the petitioner and Sri.Vinay Varghese Kallukoottil, counsel appearing for the first respondent. Though others served did not appear. 4. The counsel for the petitioner submitted that in a suit for _**O.P.(C). No.1412 of 2016**_ 3 deceleration of title, possession and fixation of boundary, without the fixation of boundary, proper relief should not be granted and the delay in filing the application alone is not criteria for dismissing the application, if at all it has caused any inconvenience that could have been compensated by payment of cost. Even if the court feels that a commission is required, that can be done by the court suo motu in a case like this. So he prayed for allowing the application. 5. On the other hand, the counsel for the respondent submitted that it cannot be said that the petitioner was not aware of the consequence of their act. Even on earlier occasion, the the evidence was closed and an application has been filed to re-open the case to examine a witness, which was discussed and they they came to this court by filing O.P.(C) 3149/2015 and this court by order dated 22/12/2015 allowed the prayer with direction to the Munsiff to consider if proper application is filed and pass appropriate order, accordingly evidence was re-opened and witness was examined and thereafter they filed O.P.(C)788/2016 before this court other application for recalling the witness examined him was dismissed by the court below and this court dismissed that application. It is thereafter that the present petition has been filed, that shows that, their attempt is only to prolong the matter, nothing more. 6. The case of the petitioners in the court below was that, an extent of 30 cents was settled in favour of the petitioner by his father _**O.P.(C). No.1412 of 2016**_ 4 Sukumaran and when the respondents 1 and 2 tried to interfere with the possession of the property, he was compelled to file Ext.P1 suit as O.S.45/2012 for deceleration of possession and title over plaint A schedule property and for fixation of boundary of plaint A and B schedule properties and permitting the petitioner to install a barbed wire fence or compound wall and for consequential injunction restraining the defendants from trespassing into the property so fixed. Admittedly no commission was taken out in that case for fixation of boundary. There is a primary duty on the part of the plaintiff to file an application to appoint an advocate commissioner to measure the property and fix the boundary on the basis of title deed with the help of the surveyor if it is required. Without getting a plan locating the property and fixing the boundary, no relief can be granted in a suit like this. But unfortunately in this case, what ever by the reason, whether it is fault of the plaintiff or the fault of the counsel, no such attempt was seen done. Party may not be knowing about the procedure to be followed or nature of evidence to be adduced. It is the counsel who is appearing for the party to help the parties to adduce what ever evidence required for the purpose of the court to arrive at a just conclusion for disposal of the case in accordance with law, so as to avoid unnecessary multiplicity of the proceedings in respect of the dispute between them. It is true that even without appointment of a commission, evidence in this case was taken and closed. On two _**O.P.(C). No.1412 of 2016**_ 5 occasions, the petitioner herself had come to this court seeking the intervention of this court when the reopening of the case was not allowed and once it was allowed to give opportunity to the petitioner to file a proper application for that purpose and if such an application is filed to dispose of the petition by appropriate order and it was conceded by both the parties that such an application was filed and an opportunity was given and that particular witness was examined. It is also in away admitted by both the counsel that another application has been filed before this court, when the court below had dismissed the application to recall a particular witness and that was challenged and that petition was dismissed by this court. 7. It is true that in the decision reported in A _**bdul Khader v. Subrahmaniam Chit Funds**_ (2006(1) KLT 749 regarding the manner in which the lethargy of parties in the proceedings are considered which reads as follows: _“An incorrect impression has gained ground that any and every error, inadequacy and contumacious lethargy in the conduct of civil cases can be corrected at later stages by approaching the superior courts. The superior courts, it is lightly assumed, in their anxiety to do justice shall condone any and every inadequacy in the conduct of the trial and grant further leases of life for the litigation. This assumption and impression, and conduct of courts to confirm the same, have in no mean measure contributed to the inordinate delay in the judicial process. The earlier such incorrect impression is dispensed with, the better for the system. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. The impression that the party and the counsel need_ _**O.P.(C). No.1412 of 2016**_ 6 _open the case bundle only after the case is listed for trial must go at the earliest. Once issues are framed, it is the duty of the parties to contemplate the steps required to be taken in the suit and prompt and proper steps must be taken. Courts must ensure that the suits are listed only after all necessary steps are taken. There is no place for undeserved indulgence or misplaced sympathy. Even in life one does not get an opportunity to correct all mistakes, set the clock back and start the game afresh. The careless, lethargic and the negligent litigant cannot be heard to complain of loss of opportunity and alleged denial of justice. Costs cannot always be reckoned as the panacea for the ailment of lethargy and negligence. The system and the polity are also indirect stake holders in every litigation and must insist on the elimination of delay. Stricter approach by courts appear to be necessary.”_ 8. It is settled law that in a case where a commission report has been filed and on the basis of the evidence, if the court is satisfied that the commissioner's report is useless and not helpful for disposal of the case, then power is vested in the court either suo motu to set aside the commissioners report or remit the commissioner's report calling for a fresh report and plan on aspects which court feels a some more clarification is required. In a case like this where the title of the property as well as the location of the property itself is in dispute, without a commissioner's report and plan, no proper adjudication could be possible. If the application for commission is dismissed, that will only give a cause of action for the appellant/the petitioner to challenge the same before the appellate court and if the appellate court feels that an opportunity ought to have been given, the matter is likely to be remitted to the court below for that purpose. That will only further _**O.P.(C). No.1412 of 2016**_ 7 delay the disposal of the case. Merely because an application has been filed belatedly for appointment of a commissioner which required for proper adjudication of the case alone is not sufficient to dismiss the application. If the court is satisfied that such a plan and report is required for proper adjudication of the case, the delay can be condoned on payment of cost as compensation to the other side for the inconvenience caused on account of the delay. Considering the circumstances and also the nature of allegations made regarding the conduct of the case by the earlier counsel, this court feels that an opportunity ought to be given by the court below to the petitioner to take out a commission to fix boundary of the property with the help of the village officer on the basis of title, so as to enable the court to pass proper decree in this case. But the latches on the part of the petitioner which caused inconvenience on the other side could have been compensated by payment of reasonable cost as evidence in this case is closed and only when it was posted for hearing that such an application has been filed. So under such circumstances, this court feels that the order passed by the court below evidenced by Ext.P4 dismissing the application for appointment of commission can be set aside on condition that the petitioner shall pay cost of 10,000/-, out₹ of which 7,500/- be paid to the counsel for the first respondent before₹ this court, who alone is opposing the application and the balance amount of 2,500/- be paid to the Kerala State Mediation and₹ _**O.P.(C). No.1412 of 2016**_ 8 Conciliation Centre, Ernakulam within one week from today. If the cost is paid and proof of payment of cost as directed has been produced before the court below within the time specified above, then court below is directed to allow the application, appoint a commissioner and the surveyor if required to measure the property and fix the boundary and thereafter after getting the report and giving opportunity to the parties to adduce evidence on the basis of the report, try to expedite disposal of the case as expeditiously as possible at any rate before the courts closes for summer vacation. If the cost is not paid and proof of payment of cost is produced as directed, then the order passed by the court below dismissing the application for appointment of the commission will stand revived and the court below is directed to dispose of the case on the basis of the evidence available on record within a period of two months. Registry is directed to communicate this order to the court below immediately by fax. With the above direction and observation the petition is disposed of. ## _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss _**O.P.(C). No.1412 of 2016**_ 9 ## **K.RAMAKRISHNAN, J.** ---------------------------------------------- **O.P.(C). No.1412 of 2016** ------------------------------------------------- _Dated this the 5[th] day of September, 2016_ ## **GIST OF THE JUDGMENT** So under such circumstances, this court feels that the order passed by the court below evidenced by Ext.P4 dismissing the application for appointment of commission can be set aside on condition that the petitioner shall pay cost of Rs.10,000/-, out of which 7,500/- be paid to the counsel for the first respondent, who is opposing the application and the balance amount of Rs.2,500/- be paid to the Kerala State Mediation and Conciliation Centre within one week from today. If the cost is paid and proof of payment of cost as directed has been produced before the court below within the time specified above, then court below is directed to allow the application appoint a commissioner and the surveyor if required for measure the property and fix the boundary and thereafter after getting the report and given opportunity to the parties to adduce evidence on the basis of the report and try to expedite disposal of the case as expeditiously as possible at any rate before the courts closes for summer vacation. If the cost is not paid and proof of payment of cost is produced as directed, then the order passed by the court below dismissing the application for appointment of the commission will stand revived and the court below is directed to dispose of the case on the basis of the evidence available on record within a period of two months. Registry is directed to communicate this order to the court below immediately by fax. _**O.P.(C). No.1412 of 2016**_ 10 ## **(K. Ramakrishnan, Judge)** ss