Valsala Bhai, Vijayakumar and Vanisree v. Geeta Prabhu and Nithyananda Prabhu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934** ## **OP(C).NO. 673 OF 2013 (O) ------------------------------------** ## **I.A. NOS.3447, 3521 AND 3522 OF 2012 IN O.S. NO.258 OF 2010 ADDITIONAL MUNSIFF'S COURT, CHERTHALA** ## **PETITIONER(S): --------------------------** ## **1. VALSALA BHAI** - **W/O.LATE SREEDHAR NAYAK, CHERUVALLIKKATTU, C.M.C. 27 CHERTHALA NORTH VILLAGE, CHERTHALA.** ## **2. VIJAYAKUMAR, S/O.LATE SREEDHAR NAYAK, CHERUVALLIKKATTU C.M.C. 27, CHERTHALA NORTH VILLAGE, CHERTHALA.** ## **3. VANISREE, D/O.LATE SREEDHAR NAYAK, VALIYAPARAMBU PUTHEN MADOM GURUKRIPA NAGAR RESIDENCY, PERUMBAVOOR.** **BY ADVS.SRI.V.L.SHENOY SRI.L.JAYAWANTH** ## **RESPONDENT(S):** - **----------------------------** ## **1. GEETA PRABHU** - **D/O.LATE GOPALA PRABHU, ALUNGAL HOUSE CHERTHALA NORTH VILLAGE, CHERTHALA.** ## **2. NITHYANANDA PRABHU, S/O.LATE GOPALA PRABHU, ALUNGAL HOUSE CHERTHALA NORTH VILLAGE, CHERTHALA.** **R1,R2 BY ADV. SRI.S.B.PREMACHANDRA PRABHU** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C) No.673 of 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXT.P-1 COPY OF THE I.A. 3447/2012 IN O.S.258/2010 OF MUNSIFF'S COURT, CHERTHALA. EXT.P-2 COPY OF THE I.A.3521/2012 IN OS 258/2010 OF MUNSIFF'S COURT, CHERTHALA. EXT.P-3 COPY OF THE I.A.3522/2012 IN OS 258/2010 OF MUNSIFF'S COURT, CHERTHALA. EXT.P-4 COPY OF THE ORDER DATED 17.1.2013 IN IA 3447/2012 IN OS 258/2010 OF MUNSIFF'S COURT, CHERTHALA. EXT.P-5 COPY OF THE ORDER DATED 17.1.2013 IN IA 3521/2012 IN O.S. 258/2010 OF MUNSIFF'S COURT, CHERTHALA. EXT.P-6 COPY OF THE ORDER DATED 17.1.2013 IN IA 3522/2012 IN O.S 258/2010 OF MUNSIFF'S COURT, CHERTHALA.** ## **RESPONDENT(S)' EXHIBITS:** **NIL** **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.673 of 2013 ==================================== Dated this the 15[th] day of March, 2013** ## **J U D G M E N T** This Original Petition is preferred by additional plaintiffs 2, 4 and 5 in O.S. No.258 of 2010 of the Additional Munsiff's Court, Cherthala challenging Exts.P4 to P6 orders on I.A. No.3447, 3521 and 3522 of 2012, respectively. 2. Predecessor-in-interest of petitioners filed O.S. No.258 of 2010 for a decree for mandatory injunction to direct respondents carry out the directions in the agreement parties had entered into, among other things, for providing pathway for the original plaintiff (according to the petitioners, a motorable way). In the course of evidence, petitioners filed Ext.P1, application - I.A. No.3447 of 2012 to amend the plaint to correct the survey number of Item No.2 which according to petitioners was mistakenly stated in the plaint. They also filed Ext.P2, application - I.A. No.3521 of 2012 for local inspection of the property by the learned Munsiff for a better appreciation of the dispute involved and Ext.P3, application - I.A. No.3522 of 2012 to reopen the case for further evidence. Those applications were resisted by the O.P(C) No.673 of 2013 -: 2 :- respondents and ended in dismissal as per Exts.P4 to P6, orders. 3. So far as Ext.P1, application is concerned, it is argued by learned counsel for petitioners that it was only to correct the mistake in the survey number of item No.2 stated in the plaint schedule. Learned counsel for respondents contended that in the original plaint there was no mistake regarding survey number. Mistake occurred only in the copy of the amended plaint. But the prayer in Ext.P1 was to correct the original plaint and that is why the learned Additional Munsiff dismissed Ext.P1, application. It is also submitted that respondents have no serious objection in allowing Ext.P1, application. 4. May be, the prayer in Ext.P1, application is to correct mistake in the survey number in the original plaint but it turned out that mistake was in the copy of amended plaint. That need not have prevented learned Munsiff from granting ultimate relief since court has power to mould reliefs. Having heard learned counsel on both sides I am inclined to allow Ext.P1, application to correct mistake in the survey number of item No.2 in the copy of amended plaint. 5. So far as Exts.P2 and P3 are concerned, the same are interconnected. Petitioners wanted learned Munsiff to conduct a O.P(C) No.673 of 2013 -: 3 :- local inspection of the property which was resisted by the respondents and rejected by the learned Munsiff. Learned counsel has placed reliance on the decisions in **Janaki Pillai v. Parameswaran Pillai** (1962 KHC 14), **Ayisha v. Kunhathukutty** (1973 KHC 14) and **Ugam Singh and Another v. Kesrimal and Others** (1970 KHC 642) to contend that it is within the power of court to conduct local inspection for a better and proper appreciation of the evidence. 6. Learned counsel for respondents resisted the request and contended that there is no circumstance warranting the learned Munsiff to inspect the disputed property. Learned counsel also contended that there is no scope for a local inspection since what is stated to be enforced is the agreement relied on by the petitioners and the agreement provides dimension of pathway which is to be provided by the respondents. 7. Learned counsel for petitioners contended that report of the Advocate Commissioner would show that pathway with the dimensions mentioned in the agreement will not admit vehicles and hence a local inspection is necessary. Leaned counsel for respondents contended what the Advocate Commissioner has reported that vehicles like Scorpio, etc., would not pass through O.P(C) No.673 of 2013 -: 4 :- the pathway with the dimensions mentioned and vehicles like Maruti Car, etc., could pass. In response learned counsel for petitioners submitted that in the absence of sufficient bell-mouth even Maruti car would not pass through the way as reported by the Advocate Commissioner. 8. The above dispute is not required to be resolved in this proceeding. That is a matter which the trial court has to decide having regard to the recitals in the agreement and an interpretation of the agreement bearing in mind the well accepted cannons of interpretation. 9. It is not disputed that the Advocate Commissioner submitted report and plan with the assistance of a Surveyor. It is also open to the parties to adduce evidence regarding their respective contentions. In that view of the matter, I am not inclined to think that learned Munsiff must be burdened with the additional responsibility of conducting local inspection of the property. 10. I must also notice that it is not as if a party to the proceeding has got a vested right to get the Presiding Officer inspect the disputed property. That is only a power vested with the court for a better and proper appreciation of the evidence. O.P(C) No.673 of 2013 -: 5 :- That is all what the decisions cited by learned counsel or petitioners say. Having regard to the facts and circumstances I am not inclined to interfere with the order passed by the learned Munsiff refusing local inspection. 11. So far as Ext.P3, application - I.A. No.3522 of 2012 is concerned that was intended for reopening of the case pursuant to Ext.P2, application which learned Munsiff as per Ext.P5, order dismissed and which I found there is no reason to interfere. In the circumstances it is not necessary to reopen the case in the way stated in Ext.P3, application. 12. Learned counsel for petitioners submitted that apart from local inspection petitioners have got other evidence to be let in. Learned counsel for respondents has invited my attention to judgment dated 02.11.2012 in O.P(C) Nos.2141 and 2159 of 2011 where this Court has issued a direction to the learned Munsiff to dispose of the suit within four months from the date of receipt of a copy of that judgment. 13. If parties are desirous of adducing further evidence in the matter, I find no reason why that opportunity should be shut out. If within the timeframe fixed by this Court learned Munsiff is not able to dispose of the suit, learned Munsiff has to request O.P(C) No.673 of 2013 -: 6 :- this Court for extension of time. Resultantly, the Original Petition is disposed as under: (i) Exhibit P4, order dismissing Ext.P1, application for amendment of survey number of item No.2 of the plaint schedule is set aside. That application is allowed. Petitioners are permitted to carry out amendment as prayed for in the plaint schedule or schedule to the amended plaint, as the case may be, within 14 days from the date on which a copy of this judgment is received in the trial court. (ii) If in answer to the amended plaint respondents are desirous of filing additional written statement, it is open to them to do so. (iii) Exhibits P5 and P6, orders dismissing Exts.P2 and P3 applications are confirmed. (iv) It is made clear that confirmation of Exts.P5 and P6 orders will not stand in the way of parties or any of them requesting the learned Munsiff to reopen the case for further evidence (not connected with the request for local inspection) and if any such request is made, learned Munsiff shall consider that and pass appropriate orders. (v) If for any reason learned Munsiff is not able to dispose O.P(C) No.673 of 2013 -: 7 :- the suit within the time fixed by this Court in the judgment in O.P (C) Nos.2141 and 2159 of 2011, learned Munsiff shall make appropriate request for extension of time. ## **THOMAS P. JOSEPH, JUDGE.** vsv