Sreedharan Paraprath v. Sahadevan P. and others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 ``` ## `OP(C) NO. 2274 OF 2021` ``` AGAINST THE ORDER DATED 20.10.2021 IN I.A.NO.4/2021 IN OS 412/2016 OF MUNSIF COURT, KUTHUPARAMBA ``` ## `PETITIONER/PLAINTIFF:` ``` SREEDHARAN PARAPRATH, AGED 70 YEARS, S/O. EEKKLISSERI KUNHIKANNAN, NAVYA NIVAS, MULLERIKKAL, MANATHANA AMSOM, PERAVOOR DESOM, IRITTY TALUK, KANNUR DISTRICT. ``` ``` BY ADVS.V.BINOY RAM S.SIDHARDHAN ``` ## `RESPONDENTS/ DEFENDANTS:` ``` 1SAHADEVAN P., AGED 60 YEARS, S/O. EEKKILISSERI KUNHIKANNAN, EEKKILISSERY HOUSE, PERAVOOR P.O., KUNITHALA, MANATHANA AMSOM, PERAVOOR DESOM, IRITTY TALUK, KANNUR DISTRICT 670 673. 2SANIL.K., AGED 32 YEARS, S/O. SAHADEVAN .P., EEKKILISSERY HOUSE, PERAVOOR P.O., KUNITHALA, MANATHANA AMSOM, PERAVOOR DESOM, IRITTY TALUK, KANNUR DISTRICT 670 673. 3PRAJEESH, AGED 41 YEARS, S/O. PREMAN, BALA'S OPTICALS, NARANGAPPURAM, THALASSERY, KANNUR DISTRICT 670 101. 4VIVEK.P., AGED 37 YEARS, S/O. LAKSHMANAN, BALA'S OPTICALS, MAMBARAM ROAD, KUTHUPARAMBA P.O. KANNUR DISTRICT 670 643. ``` ``` O.P.(C)No.2274/2021 ``` ``` -:2:- ``` ``` BY ADVS.BINDUMOL JOSEPH SRIVIDYA K ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.2274/2021 ``` ``` -:3:- ``` Dated this the 13[th] 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.4/2021 in O.S.No.412/2016(Ext.P12) passed by the Court of the Munsiff, Kuthuparamba. 2. The petitioner’s case, in the nutshell, in the memorandum of the original petition, is that; he is the plaintiff in the above court filed against the respondents. The petitioner has sought for a decree of permanent prohibitory injunction against the respondents from trespassing into the plaint scheduled property. The suit has been resisted by the respondents, who have filed Ext.P2 written statement. Pursuant to Ext.P3 application filed by the petitioner, an Advocate Commissioner was appointed and Ext.P4 commission report is on record. In the meantime, the first respondent has filed O.S.No.353/2016(Ext.P5) before the same court, against the petitioner, also ``` O.P.(C)No.2274/2021 ``` ``` -:4:- ``` seeking a decree of permanent prohibitory injunction. The petitioner has filed Ext.P6 written statement to Ext.P5. Exts.P1 and P5 suits are being consolidated and being jointly tried. The respondents have filed Exts.P7 in Ext.P5, seeking leave to amend the pleadings. Even though the petitioner had filed Ext.P8 counter affidavit, the court below granted leave to amend the plaint. Thereafter, the petitioner filed Ext.P9 additional written statement in the suit. The respondents have disputed the identify of the plaint scheduled property. They have categorically pleaded in Ext.P2 written statement that, the property described in Ext.P1 suit is not in the possession of the petitioner. Hence, the petitioner had filed Ext.P10 application, to remit the commission report and conduct a fresh inspection. The application was resisted by the respondents by filing Ext.P11 counter affidavit. The court below, without appreciating the pleadings and materials on record, dismissed the same by Ext.P12 ``` O.P.(C)No.2274/2021 ``` ``` -:5:- ``` order. Ext.P12 order is erroneous and wrong. Hence, the original petition. 3. Heard; Sri. S.Sidhardhan, the learned counsel appearing for the petitioner and Smt. Bindumol Joseph, the learned counsel appearing for the respondents. 4. The sole point that arises for consideration in this original petition is whether there is any illegality or error in Ext.P12 order passed by the court below?. 5. The learned counsel appearing for the petitioner argued that the finding of the court below in Ext.P12 order, that there was inordinate delay on the part of the petitioner in filing Ext.P10 application is wrong and misleading. Ext.P13 certified copy of the ‘B’ diary proceedings would establish that there was no sitting in the court below from 13.03.2018. It is only in the above factual background that the application was not filed earlier. 6. The learned counsel appearing for the respondents opposed the above prayer and submitted ``` O.P.(C)No.2274/2021 ``` ``` -:6:- ``` that there was inordinate delay and latches on the side of the petitioner in seeking for remission of commission report. The petitioner could have, immediately after the filing of the written statement, filed the application for remitting the commission report. It is only at the fag end of the proceeding that the petitioner has sought for remission of the commission report. The sole intention of the petitioner is to protract the determination of the suits. Hence, the original petition may be dismissed. 7. On an appreciation of the pleadings and materials on record, it can be gathered that the petitioner as well as the first respondent have filed Exts.P1 and P5 suits, seeking decrees for permanent prohibitory injunction. The specific stand of the respondents in Ext.P2 written statement is that the plaint scheduled property is not in the possession of the petitioner. They have also disputed the identity of the property. 8. In the light of the specific contention of the ``` O.P.(C)No.2274/2021 ``` ``` -:7:- ``` respondents, the petitioner sought for remission of the commission report to identify the property in question. The court below has, without adverting to the assertions in Exts.P10 application and P11 written objection, dismissed Ext.P10 on the sole ground of delay. Ext.P13 ‘B’ diary proceeding proves that there was no sitting in the court below for a considerable period of time. 9. Moreover, it is no longer res integra that in a suit for injunction, the identification of property is mandatory. This Court in **Pattathari Kuttiraman v. Puthukkudi Narayanan** [2010(3) KHC 136] and a plethora of decisions has laid down the above legal position. 10. In the present case, undisputedly, the respondents have asserted that the plaint scheduled property is not in the possession of the respondents and is not properly identified. The first respondent has also filed Ext.P5 suit, against the petitioner, seeking an identical relief. ``` O.P.(C)No.2274/2021 ``` ``` -:8:- ``` 11. In the above legal and factual situations, I am of the firm view that the commissioner is directed to identify the property with respect to the schedules in both the plaints. Thus, I hold that Ext.P10 order is erroneous and wrong, which is to be interfered and set aside in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. In the result, the original petition is allowed in the the following manner: - (i) Ext.P12 order is set aside. - (ii) Ext.P10 application is allowed. - (iii) The court below shall appoint an Advocate Commissioner to ascertain the matters sought in Ext.P10 and permit the parties to file their work memos. - (iv) The parties would be at liberty to file their - objections, if any, to the commission report filed, pursuant to this judgment. ``` O.P.(C)No.2274/2021 ``` ``` -:9:- ``` - (v) On a consideration of the fact that both Exts.P1 and P5 are of the year 2016, I direct the court below to consider and dispose of the suits, in accordance with law, as expeditiously as possible, at any rate on or before 31.03.2023. Sd/- ## **C.S.DIAS,JUDGE** DST/13.06.22 //True copy/ P.A.To Judge ``` O.P.(C)No.2274/2021 ``` ## `-:10:-` ## `APPENDIX` |`PETITIONER EXHIBITS`|`PETITIONER EXHIBITS`| |---|---| |`EXHIBIT P1`|`PHOTO COPY OF THE PLAINT IN O.S.`| ||`412/2016 DATED 24.09.2016 OF MUNSIFF`| ||`COURT, KUTHUPARAMBA.`| |`EXHIBIT P2`|`PHOTO COPY OF THE WRITTEN STATEMENT IN`| ||`O.S. 412/2016 DATED 17.01.2017 OF`| ||`MUNSIFF COURT, KUTHUPARAMBA.`| |`EXHIBIT P3`|`PHOTO COPY OF THE AFFIDAVIT AND`| ||`PETITION DATED 24.09.2016 IN I.A.`| ||`3682/2016 IN O.S. 412/2016 OF MUNSIFF`| ||`COURT, KUTHUPARAMBA.`| |`EXHIBIT P4`|`PHOTO COPY OF THE COMMISSION REPORT`| ||`DATED 01.11.2016 FILED IN I.A.`| ||`3682/2016 IN O.S. 412/2016 OF MUNSIFF`| ||`COURT, KUTHUPARAMBA.`| |`EXHIBIT P5`|`PHOTO COPY OF THE PLAINT IN O.S.`| ||`353/2016 DATED 17.08.2016 OF MUNSIFF`| ||`COURT, KUTHUPARAMBA.`| |`EXHIBIT P6`|`PHOTO COPY OF THE WRITTEN STATEMENT`| ||`DATED 17.08.2016 IN O.S. 353/2016 OF`| ||`MUNSIFF COURT, KUTHUPARAMBA.`| |`EXHIBIT P7`|`PHOTO COPY OF THE AFFIDAVIT IN I.A.`| ||`2/2021 IN O.S. 353/2016 DATED`| ||`25.06.2021`<br>`OF`<br>`MUNSIFF`<br>`COURT,`| ||`KUTHUPARAMBA.`| |`EXHIBIT P8`|`PHOTO COPY OF THE COUNTER IN EXHIBIT P7`| ||`DATED 12.08.2021 OF MUNSIFF COURT,`| ||`KUTHUPARAMBA.`| |`EXHIBIT P9`|`PHOTO COPY OF THE ADDITIONAL WRITTEN`| ||`STATEMENT DATED 24.08.2021 IN O.S.`| ||`353/2016`<br>`OF`<br>`MUNSIFF`<br>`COURT,`| ||`KUTHUPARAMBA.`| |`EXHIBIT P10`|`PHOTO COPY OF THE AFFIDAVIT AND`| ``` O.P.(C)No.2274/2021 ``` ``` -:11:- ``` ``` PETITION IN I.A. 4/2021 IN O.S. 412/2016 DATED 24.08.2021 OF MUNSIFF COURT, KUTHUPARAMBA. ``` ``` EXHIBIT P11PHOTO COPY OF THE COUNTER STATEMENT DATED 02.09.2021 IN EXHIBIT P10. ``` ``` EXHIBIT P12PHOTO COPY OF THE ORDER DATED 20.10.2021 IN I.A. 4/2021 IN O.S. 412/2016OFMUNSIFFCOURT, KUTHUPARAMBA. ``` ``` EXHIBIT P13CERTIFIED COPY OF THE PROCEEDINGS IN OS.412/2016 DATED NIL ON THE FILE OF MUNSIFF COURT, KUTHUPARAMBA ``` ``` RESPONDENTS’ EXHIBITS: NIL ```