High Court of KeralaSingle JudgeOriginal petition dismissed. Without prejudice ...

T.M. Kuriyachan v. Shaji @ Shajimon and Others (OP(C) No. 993 of 2022), High Court of Kerala

Case / Petition Number:OP(C) NO. 993 OF 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2022-06-10
Court Decision / Holding
The original petition is dismissed, without prejudice to the petitioner’s right to agitate Ext.P18; the court below shall consider Ext.P18, with evidence as necessary to establish the allowing of the application, in accordance with law at the appropriate stage. The court below is not directed to consider Ext.P18 before the commencement of trial, and shall decide in light of Francis Assissi v. Sr.Breesiya after trial or upon proper remand.
Final Disposition
Original petition dismissed. Without prejudice to the petitioner’s right to agitate Ext.P18; court below to decide Ext.P18 at an appropriate stage in accordance with law.

Parties to the Case

Appellants / Petitioners

  • T.M. Kuriyachan

Respondents

  • Shaji @ Shajimon
  • Raju
  • Thankachan
  • St. Joseph Church, Thirunallur Muri
  • Tahsildar Taluk Office, Cherthala
  • District Survey Superintendent, Cherthala
  • Village Officer, Pallipuram Village Office
  • State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Athul Tom Abraham Mathan

Case Synopsis & Summary

This petition under Article 227 of the Constitution of India seeks to compel the Munsiff Court, Cherthala, to consider Exts.P18 and P21 in O.S. No.521 of 2018 on its merits. The petitioner, plaintiff in the suit, seeks decrees for a permanent prohibitory injunction and a mandatory injunction against eight respondents, including individuals, a church, a Tahsildar, and state offices. The matter has a long procedural history of multiple Advocate Commissioner reports (Exts.P9, P12, P17) and remittances by the trial court, with this Court directing expeditious disposal in OP(C) No.1579 of 2021. The petitioner filed Ext.P18 to set aside Ext.P17 and Ext.P21 to remove the case from the trial list, due to delays and alleged discrepancies. The respondents resisted through written statements. The Court noted that Ext.P9 and Ext.P12 reports were remitted and, though Ext.P17 was not sufficient, the petitioner was urged to raise objections at trial. Relying on Francis Assissi v. Sr. Breesiya, the Court declined to exercise supervisory jurisdiction under Article 227 to direct consideration of Ext.P18 before trial. The petition is dismissed, but without prejudice to the petitioner pressing Ext.P18, with the trial court to decide in accordance with law at an appropriate stage, using admissible evidence.

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

  • Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041) – principles for exercising supervisory/interim powers and remitting commission reports; not to fashion tailor-made reports, and to decide remedies at appropriate trial stage

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Exts.P18 and P21 should be considered by the trial court prior to trial to address the persistent inconsistencies in the Advocate Commissioner reports (Exts.P9, P12, P17). He argues that the Court’s six-month directive was not meant to foreclose relief or proper examination of the commission reports, and that remitting or setting aside reports (as in Ext.P17) is essential for a fair assessment. He asserts that failure to consider Ext.P18 timely would prejudice his case and that the matter warrants supervisory scrutiny under Article 227 to prevent abuse of process and ensure just adjudication, as guided by Francis Assissi v. Sr.Breesiya.

Contentions of Respondents

The respondents contend there is no entitlement to a tailored commission report and that Ext.P18 should not be entertained before trial; delays in the proceedings are to be resolved through the trial process itself. They emphasize that the court should not exercise Article 227 to micromanage the trial timetable and that any grievances regarding commission reports should be addressed at trial or on proper remand/remission procedures if warranted by evidence, rather than by pre-trial intercession in a petition under Article 227.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Francis Assissi v. Sr.Breesiya2017 (1) KLT 1041PositiveCited for the principle that supervisory/interim directions under Article 227 should not subvert the trial process and that any remission/remand of commission reports or related orders must be handled in accordance with established principles; the court applies this framework to deny pre-trial interference and allow Ext.P18 to be considered at the appropriate stage.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**OP(C) NO. 993 OF 2022** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944** **OP(C) NO. 993 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OS 521/2018 OF PRINCIPAL MUNSIFF** **COURT, CHERTHALA** ## **PETITIONER/PETITIONER/PLAIINTIFF:** T.M.KURIYACHAN AGED 56 YEARS KURISHINGAL HOUSE, THOTTAYKKAAT NIKATH, THIRUNALLUR MURI, PALLIPURAM VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT, PIN - 688541 BY ADVS. ATHUL TOM ABRAHAM MATHAN ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 SHAJI @ SHAJIMON AGED 51 YEARS VADAKASHERRIYIL HOUSE,THOTTUNGAL, K.R.PURAM P.O, THIRUNALLUR MURI, PALLIPURAM VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT, PIN - 688524 2 RAJU AGED 56 YEARS S/O OUSEPH, VADAKASHERRIYIL HOUSE, THOTTUNGAL, K.R.PURAM P.O, THIRUNALLUR MURI, PALLIPURAM VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT, PIN - 688524 THANKACHAN AGED 61 YEARS S/O OUSEPH, VADAKASHERRIYIL HOUSE, **OP(C) NO. 993 OF 2022** **2** 3 THOTTUNGAL, K.R.PURAM P.O, THIRUNALLUR MURI, PALLIPURAM VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT, PIN - 688524 4 ST. JOSEPH CHURCH THIRUNALLUR MURI, PALLIPURAM VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT -688541, REPRESENTED BY ITS VICAR, PIN - 688541 5 THAHASILDAR TALUK OFFICE, CHERTHALA ALLEPPEY DISTRICT, PIN - 688524 6 DISTRICT SURVEY SUPERINTENDENT MINI CIVIL STATION, CHERTHALA, ALLEPPEY DISTRICT, PIN - 688524 7 VILLAGE OFFICER PALLIPURAM VILLAGE OFFICE, CHERTHALA, ALLAPPEY DISTRICT, PIN - 688541 8 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION WARD, ALLEPPEY, PIN - 688001 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 993 OF 2022** **3** ## **JUDGMENT** The original petition is filed to direct the Court of the Munsiff, Cherthala, to consider and dispose of Exts.P18 and P21 applications filed in O.S No.521 of 2018, on its merits. 2. The petitioner, who is the plaintiff in the Ext.P1suit, has sought decrees for a permanent prohibitory injunction and a mandatory injunction against the respondents. The suit has been resisted by the respondents, the defendants in the suit, by filing Exts.P2 to P4 written statements. The petitioner had filed Ext.P5 application to appoint a Surveyor to demarcate the boundaries with the assistance of an Advocate Commissioner. Thereafter, the petitioner had filed O.P(C)No.1579/2021 before this Court for the expeditious disposal of the suit. This Court by Ext.P8 order dated 23.12.2021, directed the court below to dispose of the suit **OP(C) NO. 993 OF 2022** **4** within a period of six months. The Advocate Commissioner had filed Ext.P9 report on 24.1.2022. However, the commission report was full of discrepancies. Therefore, the petitioner had filed Ext.P10 application to remit the commission report. The 1[st] respondent had also filed an application for the same purpose. The Trial Court had by Ext.P11 order set aside Ext.P9 commission report and appointed another Advocate Commission to carry out the inspection with the assistance of the Taluk Surveyor. The Advocate Commissioner had filed Ext.P12 report. But, Ext.P12 also contains discrepancies. Hence the petitioner had filed Ext.P14 to remit Ext.P12 commission report. The 4[th] respondent had also filed a similar application. The court below, again after considering Exts.P14 and P15 applications, remitted the commission report by Ext.P16 order. Consequently, the Advocate Commissioner again visited the property on 13.5.2022 with the assistance of a **OP(C) NO. 993 OF 2022** **5** Taluk Surveyor and has filed Ext.P17 report. Unfortunately, Ext.P17 is not sufficient to assist the court below to arrive at a joint and proper decision. Hence the petitioner has now filed Ext.P18 application to set aside the said report also, but the court below has without considering the application listed the case for trial to 11.6.2022. As 11.6.2022 falls on a second Saturday, which is a public holiday, the petitioner has filed Ext.P21 application to remove the case from the list. Exts.P18 and P21 may be directed to be considered by the court below, otherwise it would cause prejudice to the petitioner. 3. Heard; Sri.Athul Tom, the learned counsel for the petitioner on admission. 4. Undisputedly, as per the pleadings and materials on record, Exts.P9 and P12 commission reports were remitted back. At the instance of the petitioner, this Court had directed the Trial Court to dispose of the suit within a period **OP(C) NO. 993 OF 2022** **6** of six months. The time period is now almost over. Thereafter, the petitioner has, just before the commencement of trial, i.e., on 2.6.2022, filed Ext.P18 application and approached this Court to direct the court below to consider the application, until such time to defer the trial. 5. The petitioner cannot expect to have a tailor made commission report to suite his case. After inviting Ext.P8 order from this Court, the petitioner cannot protract the determination of the suit. The petitioner has to necessarily get ready and co-operate with the trial. Nonetheless, if the petitioner has any grievance as against Ext.P17 commission report, it would be up to him to point out the same at the time of trial and the court below shall, following the principles laid down by this Court in **Francis Assissi v. Sr.Breesiya** [2017 (1) KLT 1041), decide whether there is any necessity to again remit the commission report. I do not find any ground or circumstance warranting the exercise **OP(C) NO. 993 OF 2022** **7** of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to direct the court below to consider Ext.P18 before the commencement of trial. In the result, the original petition is dismissed, without prejudice to the right of the petitioner to agitate Ext.P18 application, by letting in such evidence that may be necessary to establish the allowing of the application, and court below shall untrammelled by any observation contained in this judgment, decide the application in accordance with law at the appropriate stage. **Sd/-** **C.S.DIAS** ma/10/6/2022 **JUDGE** **8** ## **OP(C) NO. 993 OF 2022** ## **APPENDIX OF OP(C) 993/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE PLAINT IN O.S.NO.521 OF| |---|---| ||2018 OF THE MUNSIFF COURT, CHERTHALA| |Exhibit P2|TRUE COPY OF THE WRITTEN STATEMENT FILED BY| ||RESPONDENTS 1 TO 3| |Exhibit P3|TRUE COPY OF THE WRITTEN STATEMENT FILED BY| ||THE 4TH RESPONDENT| |Exhibit P4|A TRUE COPY OF THE WRITTEN STATEMENT FILED| ||BY THE 5TH RESPONDENT| |Exhibit P5|TRUE COPY OF I.A.NO.1 OF 2020 FILED BY THE| ||PETITIONER| |Exhibit P6|TRUE COPY OF THE CASE DETAILS OF O.S.NO.521| ||OF 2018 OBTAINED FROM THE E-COURTS WEBSITE| ||TILL 26.10.2021| |Exhibit P7|A TRUE COPY OF THE COUNTER AFFIDAVIT FILED| ||BY THE 5TH RESPONDENT IN O.P(C) NO.1579 OF| ||2021| |Exhibit P8|A TRUE COPY OF THE JUDGMENT DATED 23.12.2021| ||IN O.P(C) NO.1579 OF 2021| |Exhibit P9|A TRUE COPY OF THE REPORT OF ADVOCATE| ||COMMISSIONER DATED 24.01.2022 ALONG WITH THE| ||SKETCH| |Exhibit P10|A TRUE COPY OF THE I.A NO.3 OF 2022| |Exhibit P11|A TRUE COPY OF THE ORDER IN I.A NO. 03/2022| ||AND I.A NO.4/2022 DATED 25.02.2022| |Exhibit P12|A TRUE COPY OF THE REPORT DATED 30.03.2022| **OP(C) NO. 993 OF 2022** **9** Exhibit P13 A TRUE COPY OF THE OBJECTION TO THE COMMISSION REPORT FILED BY THE PETITIONER DATED 04.04.2022 Exhibit P14 A TRUE COPY OF THE I.A. NO.5/2022 Exhibit P15 A TRUE COPY OF THE I.A NO.6 OF 2022 Exhibit P16 A TRUE COPY OF THE ORDER DATED 08.04.2022 IN I.A NO. 5 & 6 OF 2022 Exhibit P17 A TRUE COPY OF THE REPORT AND SKETCH OF THE ADVOCATE COMMISSIONER DATED 19.05.2022 Exhibit P18 A TRUE COPY OF I.A NO.7 OF 2022 DATED 02.06.2022 FILED BY THE PETITIONER Exhibit P19 THE TRUE COPY OF OBJECTION TO EXHIBIT P18 DATED 02.06.2022 Exhibit P20 A TRUE COPY OF THE CASE DETAILS UPDATED IN THE WEBSITE Exhibit P21 A TRUE COPY OF I.A NO. 8/2022 DATED 04.06.2022