M.S. Manilal v. Biju and Sheejakumari

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** ## **OP(C) NO. 1932 OF 2016** **AGAINST ORDER IN I.A.NO.664/2013 AND I.A.NO.522/2015 IN OS 285/2008 OF MUNSIFF'S COURT, PARAVOOR** ## **PETITIONER/DEFENDANT:** M.S. MANILAL, AGED 50 YEARS, 'SANNIDHI', THAZHAM CHERRY, MEENADU VILLAGE, KOLLAM DISTRICT. BY ADV SRI.K.V.ANIL KUMAR ## **RESPONDENTS/PLAINTIFFS:** 1 BIJU, S/O. SIVAN PILLAI, KOCHAMPANADU VEEDU,THAZHAM CHERRY, MEENADU VILLAGE,CHATHANNOOR P.O., KOLLAM - 691 572. 2 SHEEJAKUMARI, W/O. BIJU, KOCHAMPANADU VEEDU,THAZHAM CHERRY, MEENADU VILLAGE,CHATHANOOR P.O., KOLLAM DISTRICT-691572. BY ADVS. SRI.ARUN BABU SRI.B.DIPU SACH DEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) No.1932 of 2016 2 ## K.BABU, J . -------------------------------------- O.P(C) No.1932 of 2016 --------------------------------------- Dated this the 24[th] day of March, 2022 ## JUDGMENT The prayers in the Original Petition filed under Article 227 of the Constitution of India are as follows: - “(i) Set aside Exts.P6 and P11 orders passed by the Munsiff's Court, S.Paravur in O.S.No.285/2008; - (ii) Direct the Munsiff's Court, S.Paravur to reconsider Ext.P5 application and set aside the commission report and plan in O.S.No.285/2008 and appoint another commissioner in the suit; - (iii) Issue such other order or direction, as this Honourable Court may deem fit and proper, in the circumstances of this case.” 2. The defendant in O.S.No.285/2008 on the file of the Munsiff's Court, S. Paravur is the petitioner. The plaintiffs in the suit are the respondents. 3. The plaintiffs instituted the Original Suit for declaring the right of easement by grant over the Plaint 'B' schedule property. The plaintiffs are the owners of 'A' schedule property having an extent of 3.48 Ares in Re-survey No.7/9 of Meenadu Village. 'B' schedule property, a 4 feet wide way having an approximate length O.P(C) No.1932 of 2016 3 of 32 metres, is used by the plaintiffs to access 'A' schedule property from the eastern panchayat road. The plaintiffs pleaded that they alone have right over 'B' schedule property. According to the plaintiffs, on 24.11.2008, the defendant constructed the foundation of a boundary wall encroaching upon the 'B' schedule way. 4. The defendant resisted the suit, contending that he never obstructed the plaintiffs' peaceful enjoyment of 'B' schedule way. The defendant denied the claim of the plaintiffs that they have exclusive right over the 'B' schedule property. The defendant filed counterclaim praying for fixation of the boundary of his property based on the Re-survey plan and the relevant title deeds. He also prayed for a prohibitory injunction restraining the plaintiffs from obstructing the construction of the southern boundary of his property. 5. During the course of proceedings, on the application of plaintiffs, a Commissioner appointed by the Court below visited the property and prepared mahazar, report and plan (Ext.P3 and Ext.P4 series) O.P(C) No.1932 of 2016 4 6. The defendant filed objection to the Commission report contending that the measurement of the properties was not based on any accepted plan. The defendant also filed I.A.No.664/2013 (Ext.P5) to set aside Ext.P4 series-report, plan and sketch. The plaintiffs filed a formal objection to Ext.P5 application. The Court below dismissed Ext.P5 application as per Ext.P6 order. The operative portion of Ext.P6 order reads thus: “Going through the petition I am of the view that serious contentions were raised by the petitioner. Since the petition can be disposed only after taking evidence it is posted along with suit. Hence the petition is dismissed.” This order is under challenge in this petition. 7. Heard Sri.K.V.Anil Kumar, the learned counsel appearing for the petitioner/defendant and Sri.B.Dipu Sach Deev, the learned counsel appearing for the respondents/plaintiffs. 8. The learned counsel for the petitioner contended that the Court below has casually disposed of Ext.P5 application without assigning any reasons. 9. Per contra, the learned counsel for the respondents contended that the attempt of the defendant was to get the matter O.P(C) No.1932 of 2016 5 prolonged by filing applications without any basis. 10. On the first part of the operative portion of the order, the Trial Court recorded that the petition was posted along with the suit, and on the subsequent portion, the petition is seen dismissed. 11. On a perusal of the order impugned, this Court finds that no reasons have been assigned by the Court below in dismissing the petition. The order itself reveals that serious contentions were raised by the petitioner. However, the Court below has not given any reasons to dismiss the petition. 12. Providing reasons in orders is an essential attribute of the judicial proceedings. The reason is the very life of the law. Every litigant who approaches the Court with a prayer is entitled to know the reasons for acceptance or rejection of such prayer. Reasons are also essential for either of the parties to the lis to make the remedy of appeal meaningful. It is the reasoning which ultimately culminates into a final decision which may be subject to examination of the higher Courts. 13. While highlighting the principle that, to give reasons is the rule of natural justice, the Apex Court in The Secretary & O.P(C) No.1932 of 2016 6 Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and others [AIR 2010 SC 1285] held that, not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. The Apex Court also held that absence of reasons renders the order indefensible/unsustainable particularly when O.P(C) No.1932 of 2016 7 the order is subject to further challenge before a higher forum. It was further held that the recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as to why his application has been rejected. 14. In Jawahar Lal Singh v. Naresh Singh [(1987) 2 SCC 222] the Apex Court held that recording of proper reasons would be essential, so that the appellate court would have advantage of considering the considered opinion of the High Court on the reasons which had weighed with the Trial court. 15. In State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568] the Apex Court held that reason in support of the decision is cardinal principle and right to reason is an indispensable part of a sound judicial system. 16. In State of Rajasthan v. Rajendra Prasad Jain [(2008) 15 SCC 711] the Apex Court held that reason is the heartbeat of every conclusion, and without the same it becomes lifeless. 17. In Assistant Commissioner, Commissioner Tax O.P(C) No.1932 of 2016 8 Department Works Contract and Leasing, Kota v. Shukla and Brothers [ (2010) 4 SCC 785] , the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. 18. The court below lost sight of the above-mentioned salutary requirements while passing the impugned order. It ignored the fact that a losing litigant has a cause to plead and a right to challenge the order if it was adverse to him. 19. Resultantly, Ext.P6 order is liable to be set aside. The Original Petition is allowed. The order dismissing I.A.No.664/2013 (Ext.P6) is set aside. The Court below is directed to consider Ext.P6 application afresh. Both sides are at liberty to raise their contentions. 20. There will be a direction to the Trial Court to dispose of the original suit as expeditiously as possible, at any rate, within a O.P(C) No.1932 of 2016 9 period of six months from the date of receipt of a copy of this judgment. It is made clear that the Court below is at liberty to seek extension of time, if required. The Original Petition is disposed of as above. Sd/K.BABU, JUDGE KAS O.P(C) No.1932 of 2016 10 ## **APPENDIX OF OP(C) 1932/2016** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE PLAINT IN O.S 285/208| ||OF THE MUNSIFFS COURT, S. PARAVUR| |EXHIBIT P2|TRUE COPY OF THE WRITTEN STATEMENT AND| ||COUNTER CLAIM IN O.S 285/2008| |EXHIBIT P3|TRUE COPY OF THE COMMISSION REPORT IN| ||O.S 285/2008 OF THE MUNSIF COURT, S.| ||PARAVUR| |EXHIBIT P4|TRUE COPY OF THE SURVEY COMMISSION| ||REPORT AND PLAN| |EXHIBIT P5|TRUE COPY OF THE I.A. 664/2013 FOR| ||SETTING ASIDE COMMISION REPORT| |EXHIBIT P6|TRUE COPY OF THE ORDER DATED 11/06/2013| ||IN I.A. 664/2013| |EXHIBIT P7|TRUE COPY OF THE I.A 942/2014| |EXHIBIT P8|TRUE COPY OF THE OBJECTION IN I.A| ||942/2014| |EXHIBIT P9|TRUE COPY OF THE I.A 522/2015| |EXHIBIT P10|TRUE COPY OF THE OBJECTION IN I.A| ||522/2015| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED 04/07/2016| ||IN I.A 522/2015 IN O.S 285/2008|