S. VALSALADEVI v. 1C. SOFI, 2 STELLA VERGIN, 3 THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM

``` OP(C) NO.1641 OF 2022 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944 OP(C) NO. 1641 OF 2022 ``` ## **`IA 8/2020 IN TOS 151/2020 OF ADDL.MUNSIFF COURT-IV,`** ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/1ST COUNTER PETITIONER IN IA/1ST DEFENDANT IN OS:`** ``` S. VALSALADEVI AGED 64 YEARS W/O. LATE VIJAYAKUMAR, RESIDING AT HOUSE NO.71, DEVIKRIPA, NEETHI NAGAR, MENON'S LANE, THURUTHUMMOOLA WARD, PEROORKADA P.O.,THIRUVANANTHAPURAM , PIN - 695005 BY ADV R.LAKSHMI NARAYAN ``` ## **`RESPONDENT/PETITIONERS AND 2ND COUNTER PETITIONER IN IA/PLAINTIFFS`** ## **`AND 2ND DEFENDANT IN OS:`** ``` 1C. SOFI AGED 63 YEARS S/O. CHARELS, HOUSE NO.70-A, T.C. 32/1542, NEETHI NAGAR, MENON'S LANE, THURUTHUMMOOLA WARD, PEROORKADA P.O., P.O.,THIRUVANANTHAPURAM, PIN - 695005 2STELLA VERGIN AGED 59 YEARS W/O. C SOFY , HOUSE NO.70-A, T.C. 32/1542, NEETHI NAGAR, MENON'S LANE, THURUTHUMMOOLA WARD, PEROORKADA P.O., P.O.,THIRUVANANTHAPURAM , PIN - 695005 3THE SECRETARY CORPORATION OF THIRUVANANTHAPURAM, PALAYAM, THIRUVANANTHAPURAM, PIN - 695001 BY ADVS. P.K. MANOJKUMAR -R3 SUMAN CHAKRAVARTHY - R1,R2 AMJATH A.R(K/301/2012) – R1,R2 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO.1641 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved and displeased with Ext.P9 order passed by the Court of the Additional Munsiff-IV (RCC), Thiruvananthapuram, in I.A. No. 8 of 2020 in O.S.No. 151 of 2020, the first defendant in the suit has filed the original petition. The respondents 1 and 2 are the plaintiffs and the 3[rd] respondent is the 2[nd] defendant, in the suit. 2. The antecedent facts leading to Ext.P9 order, in a nutshell, are: the respondents 1 and 2 have filed the suit against the petitioner and the 3[rd] respondent, inter-alia, to restrain the petitioner from making any further construction adjacent to the boundary wall of plaint ‘A’ schedule property belonging to the respondents 1 and 2. The suit has been filed as a counterblast to the complaint that was made by the petitioner against the respondents 1 and 2 before the 3[rd] respondent. Along with the suit, the respondents 1 and 2 had filed I.A. No. 2 of 2020 and an Advocate Commissioner was appointed, who has filed Ext.P2 report. The inspection was conducted without ``` OP(C) NO.1641 OF 2022 ``` ``` 3 ``` notice to the petitioner. Pointing out the irregularities and incorrectness in Ext.P2 report, the petitioner has filed Ext.P3 objection. While the correctness of Ext.P2 report was pending consideration, the respondents 1 and 2 filed I.A. No.8 of 2020 (Ext.P5) to depute the Advocate Commissioner to conduct a fresh inspection to elucidate certain matters sought in Ext.P5 application. The petitioner objected to Ext.P5 application through Ext.P6 counter statement but submitted a panel of experts. The petitioner also filed an application to permit her to examine the Advocate Commissioner before accepting the report. While so, the respondents 1 and 2 filed I.A. No. 13 of 2021 (Ext.P7) to depute experts to ascertain the matters sought in Ext.P5 application. The petitioner objected to Ext.P7 application through Ext.P8 objection. The court below, without considering the objections in its proper perspective, allowed Ext.P5 application. The Commissioner served Ext.P11 notice stating that she would inspect the property on 12.8.2022. Although the petitioner filed ``` OP(C) NO.1641 OF 2022 ``` ``` 4 ``` Ext.P13 application to postpone the inspection, the court below did not consider the same. Ext.P9 order is manifestly wrong and unsustainable in law. Hence, the original petition. 3. The first respondent has filed a counter affidavit denying the allegations in the original petition. It is, interalia, contended that, after Ext.P2 commission report was filed, the petitioner has illegally made certain constructions in the plaint ‘C’ schedule property. In order to report the illegal activities the respondents 1 and 2 have filed Ext.P5 application. The matters sought to be ascertained in Ext.P5 application and the matters already ascertained in Ext.P2 report are totally different aspects. The respondents have initiated prosecution proceedings against the petitioner for violating the order of temporary injunction. The 1[st] respondent has also filed Ext.P7 application to accept the panel of experts and the work memo. The Advocate Commissioner conducted the inspection and has submitted Ext.R1(j) report. The ``` OP(C) NO.1641 OF 2022 ``` ``` 5 ``` petitioner is attempting to mislead this Court. The original petition is devoid of merit and is only to be dismissed. 4. Heard Sri. Lakshmi Narayan, the learned counsel appearing for the petitioner and Sri. Suman Chakravarthy, the learned counsel appearing for the respondents 1 and 2. 5. The question is whether there is any illegality in Ext.P9 order. 6. On an analysis of the pleadings and materials on record, it is evident that the Advocate Commissioner had filed Ext.P2 report at the first instance. The petitioner has objected to the report through Ext.P3 counter statement. Subsequently, on finding that the petitioner has violated the order of temporary injunction, the respondents 1 and 2 have filed Ext.P5 application to prove the violations. The same was allowed by the court below. In fact, the petitioner has also submitted a panel of experts. The court below, by the impugned Ext.P9 order, allowed the application and the Advocate Commissioner has conducted the inspection and filed Ext.R1(j) report. ``` OP(C) NO.1641 OF 2022 ``` ``` 6 ``` 7. A Division Bench of this Court in **Francis Assissi** v. **Sr. Breesiya** [2017 (1) KLT 1041] has held that there is no prohibition in supplemental commission reports being filed in a suit. 8. In the case at hand, Ext.P5 application was filed to depute an Advocate Commissioner to establish the alleged violation of the order of temporary injunction. Pursuant to Ext.P9, the Advocate Commissioner has placed Ext.R1(j) report on record. The filing of Ext.R1(j) report will not stand in the way of the court below considering Ext.P3 objection filed to Ext.P2 report, to consider whether Ext.P2 report has to be remitted or not. I do not find any error or illegality in Ext.P9 order, passed by the court below warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed. Sd/- ## **C.S.DIAS, JUDGE** okb/24.11.22 //True copy// P.S. to Judge ``` OP(C) NO.1641 OF 2022 ``` ``` 7 ``` ## **`APPENDIX OF OP(C) 1641/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P-1`|`THE TRUE COPY OF THE PLAINT DATED 24.1.2020`| ||`IN OS NO. 151/2020 ON THE FILE OF THE COURT`| ||`OF ADDITIONAL MUNSIFF IV- RCC,`| ||`THIRUVANANTHAPURAM`| |`Exhibit P-2`|`THE TRUE COPY OF THE NOTICE DATED 29.1.2020`| ||`ISSUED BY THE COMMISSIONER ALONG WITH THE`| ||`COMMISSION REPORT DATED 10.3.2020`| |`Exhibit P-3`|`THE TRUE COPY OF THE OBJECTION DATED`| ||`26.6.2020 FILED BY THE PETITIONER TO EXT. P-2`| ||`COMMISSION REPORT`| |`Exhibit P-4`|`THE TRUE COPY OF THE OBJECTION DATED 5.4.2020`| ||`FILED BY THE PETITIONER TO THE INJUNCTION`| ||`APPLICATION I.A. NO.1/2020 PREFERRED BY THE`| ||`RESPONDENTS 1 & 2 ALONG WITH EXT.P1 SUIT`| |`Exhibit P-5`|`THE TRUE COPY OF THE APPLICATION BEARING IA`| ||`NO.8/2020 IN OS NO.151/2020 , DATED`| ||`28/09/2020`| |`Exhibit P-6`|`THE TRUE COPY OF THE OBJECTION DATED`| ||`15/10/2020, FILED BY THE PETITIONER IN IA NO.`| ||`8/2020, ALONG WITH THE ANNEXURE, THE PANEL OF`| ||`EXPERTS`| |`Exhibit P- 7`|`THE TRUE COPY OF THE PETITION I.A. NO 13 OF`| ||`2021 FILED IN O.S. NO 151 OF 2020 ALONG WITH`| ||`PANEL OF EXPERT ENGINEERS AND WORK MEMO, ALL`| ||`DATED 8.4.2021`| |`Exhibit P-8`|`THE TRUE COPY OF THE OBJECTION DATED`| ||`29.09.2021 FILED BY THE PETITIONER TO EXT. P-`| ||`7, SUBMITTED BY THE RESPONDENTS 1 AND 2`| |`Exhibit P-9`|`THE TRUE COPY OF THE ORDER DATED 03.06.2022,`| ||`IN I.A. NO 8 OF 2020 IN O.S. NO 151 OF 2020,`| ||`WRITTEN FROM THE DAIRY OF THE COURT`| |`Exhibit P-10`|`THE TRUE COPY OF THE CASE DAILY STATUS`| ||`DOWNLOADED FROM THE E- COURT SITE`| |`Exhibit P-11`|`THE TRUE COPY OF THE NOTICE DATED 04.08.2022`| ||`ISSUED BY THE ADVOCATE COMMISSIONER`| |`Exhibit P-12`|`THE TRUE COPY OF THE I.A. NO. 15 OF 2022 IN`| ||`O.S. NO 151 OF 2020, DATED 08.08.2022`| |`Exhibit P-13`|`THE TRUE COPY OF I.A. NO 16 OF 2022 IN O.S.`| ||`NO 151 OF 2020 DATED 08.08.2022`| |`RESPONDENT EXHIBITS`|| |`Exhibit-R1(a)`|`A true copy of the order dated 29.01.2020 in`| ||`I.A No.1/2020 in O.S No.151/2020`| ``` OP(C) NO.1641 OF 20228 ``` ``` Exhibit-R1(d)A true copy of the affidavit and petition in I.A No.9/2020 Exhibit-R1(f)A true copy of the proceedings dated 11.03.2022 in O.S No.151/2020 by the Munsiff- IV, RCC, Thiruvananthapuram Exhibit-R1(g)A true copy order by the Addl. Munsiff Court, RCC dated 03.06.2022 in I.A No.8/2020 in O.S No.151/2020 Exhibit-R1(i)A true copy of the proceedings on 12.08.2022 in O.S No.151/2020 on the files of Additional Munsiff-IV(RCC), Thiruvananthapuram Exhibit-R1(j)A true copy of the commission report dated 28.09.2022 Exhibit-R1(h)A true copy of the e-court proceedings dated 11.07.2022 in O.S No.151/2020 on the files of Additional Munsiff-IV(RCC), Thiruvananthapuram Exhibit-R1(k)A true copy of the interim report submitted by the expert engineer dated 28.09.2022 Exhibit-R1(c)A true copy of Affidavit and Petition in I.A No.8/2020 Exhibit-R1(e)A true copy of the affidavit and petition in I.A No.13/2021 Exhibit-R1(b)A true copy of the Affidavit and Petition in I.A No.2/2020 ```