IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
OP(C) NO. 1470 OF 2022
AGAINST THE ORDER/JUDGMENT IN IA NO 3 AND 4 OF 2022 IN OS
1259/2012 OF II ADDITIONAL SUB COURT,TRIVANDRUM
PETITIONER/S:
JOHN C. MARSHAL
AGED 42 YEARS
S/O. CHELLAPAN NADAR, ROSE COTTAGE,
ANTHIYOORKONAM, MALAYINKEEZHU, THIRUVANANTHAPURAM
- 695 571.
BY ADVS.
GEORGE MATHEW
SUNIL KUMAR A.G
PRAVEEN S.
DIPU JAMES
MATHEW K.T.
STEPHY K REGI
M.D.SASIKUMARAN
GEORGE K.V.
RESPONDENT/S:
USHA
D/O. KAMALAKSHI, CHRISTU BHAVAN,
PALLIVILA, CHELAPPARA, VILAPPIL VILLAGE,
THIRUVANANTHAPURAM - 695 573
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) No.1470 of 2022
C.S DIAS,J.
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OP(C) No.1470 of 2022
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Dated this the 10th day of August, 2022.
JUDGMENT
The original petition is filed to set aside the order in IA No.3/2022 (Ext P5) and in IA No.4/2022 (Ext P8) in OS 1259/2012 of the Court of the Additional Subordinate Judge-II, Thiruvananthapuram.
2. The skeletal facts, relevant for the determination of the original petition are: the petitioner is the defendant in the above suit, which is filed by the respondent, for a decree of specific performance with alternative relief for return of advance sale consideration. Ext P1 plaint was instituted in the year 2012. The petitioner has filed Ext P2 written statement to Ext P1 plaint also in the same year. During the cross- examination of the respondent as PW1, she made contradictory statements with reference to the lie and location of the plaint schedule property. PW1's evidence 3 OP(C) No.1470 of 2022 reveals that there is no agreement executed between the parties. To prove the above aspect, the petitioner filed Ext P3 application, to depute an Advocate Commissioner to ascertain the matter mentioned in the application. The application was objected to by the respondent by filing Ext P4 objection. The court below, by Ext P5 order, has erroneously dismissed Ext P3 application. So, the petitioner filed Ext P6 application to review Ext P5 order which has also been objected to by the respondent by filing Ext P7 counter affidavit. The court below, again, by Ext P8 order, repeated the earlier mistake and dismissed Ext P6. Exts P5 and P8 orders are erroneous and wrong. Hence, the original petition.
3. Heard; Sri.George Mathew, the learned counsel appearing for the petitioner.
4. The point is whether there is any error or illegality in Exts P5 and P8 orders passed by the court below.
5. Admittedly, the suit is of the year 2012, which is filed for a decree of specific performance with alternative 4 OP(C) No.1470 of 2022 relief for return of advance sale consideration. It is the petitioner's case that during the cross-examination of the respondent, she has made contradictory statements necessitating the filing of Ext P3 application. The court below, after taking note of the fact that the suit is one for specific performance with an alternative prayer for return of advance sale consideration, has concluded that there is no necessity to ascertain the lie and location of the plaint schedule property.
6. An analysis of Exts P3 and P6 applications shows the petitioner wants to prove that the property has rubber plantations, but PW1 had deposed that the property is a barren land.
7. It is to be remembered that the agreement was executed 12 years back and the suit is also of the same year. Therefore, the change in nature of the property cannot be ruled out. Moreover, since the suit is for the above-mentioned reliefs, I do not find any necessity to depute an Advocate Commissioner to ascertain the matter sought for in Ext P3 application, as rightly held by the 5 OP(C) No.1470 of 2022 court below. There is no error or illegality in Exts P5 and P8 orders passed by the court below warranting interference by this Court in exercise of its supervisory powers under Article 227 of the Constitution of India. The original petition fails and is dismissed.
sd/-
sks/10.8.2022 C.S.DIAS, JUDGE
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OP(C) No.1470 of 2022
APPENDIX OF OP(C) 1470/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF PLAINT DTD. 12.10.2012 IN
O.S. NO.1259 OF 2012 OF THE SECOND
ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM Exhibit P2 TRUE COPY OF WRITTEN STATEMENT DTD.
26.02.2021 FILED BY PETITIONER IN EXT.P1 Exhibit P3 TRUE COPY OF I.A NO.3 OF 2022 DTD.
10.02.2022 IN EXT. P1 Exhibit P4 TRUE COPY OF OBJECTION DTD. 15.02.2022 FILED BY RESPONDENT IN EXT.P3 Exhibit P5 TRUE COPY OF ORDER DTD. 25.03.2022 IN I.A.NO.3 OF 2022 IN O.S. NO.1259 OF 2012 OF THE SECOND ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM Exhibit P6 . TRUE COPY OF I.A. NO. 4 OF 2022 IN I.A.NO.3 OF 2022 IN O.S. NO.1259 OF 2012 DTD. 21.06.2022 OF THE II ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM Exhibit P7 TRUE COPY OF OBJECTION DTD. NIL OF JUNE 2022 IN EXT. P6 Exhibit P8 TRUE COPY OF ORDER DTD. 12.07.2022 IN I.A. NO. 4 OF 2022 IN I.A.NO.3 OF 2022 IN O.S. NO.1259 OF 2012 OF THE II ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM