OP(C) NO. 1604 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
OP(C) NO. 1604 OF 2022
AGAINST THE ORDER/JUDGMENT IN OS 2348/2014 OF PRINCIPAL
MUNSIFF COURT ,TRIVANDRUM
IA 7/2022 OF PRINCIPAL MUNSIFF COURT ,TRIVANDRUM
PETITIONER/S:
PAPPACHAN
AGED 72 YEARS
KUZHIVILAKATH PUTHEN VEEDU
POONKULAM, VELLAYANI P.O.
THIRUVANANTHAPURAM
, PIN - 695522
BY ADV V.S.BABU GIREESAN
RESPONDENT/S:
VISWANATHAN
AGED 70 YEARS
KUZHIVILAKATH PUTHEN VEEDU
POONKULAM, VELLAYANI P.O.
THIRUVANANTHAPURAM
, PIN - 695522
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1604 OF 2022
2
JUDGMENT
Being aggrieved by the order in I.A.No.7/2022 in O.S.No.2348/2014 (Ext.P10) of the Court of the Principal Munsiff, Thiruvananthapuram, the 2nd defendant in the suit is before this Court. The respondent is the plaintiff in the suit.
2. The concise case of the petitioner, in the original petition, is that: he is the 2 nd defendant in the above suit which is filed by the respondent, for a decree to declare easement right over the plaint 'A' schedule property and other consequential reliefs. The suit is resisted by the petitioner and his daughter, who is the 1st defendant in the suit, who have filed Ext.P6 written statement. On the application made by the respondent, an Advocate Commissioner was appointed and Ext.P8 report is on record. The petitioner has filed his written objection to Ext.P8 report. The petitioner has filed Ext.P1 application, to appoint another OP(C) NO. 1604 OF 2022 3 Advocate Commissioner to report the non-existence of plaint 'F' schedule pathway. The same has been resisted by the respondent through Ext.P2 objection. The court below, by the impugned Ext.P10 order, has dismissed Ext.P1. Ext.P10 is erroneous and wrong. Hence, the original petition.
3. Heard; Sri.V.S.Babu Gireesan, the learned counsel appearing for the petitioner.
4. The point is whether there is any error or illegality in Ext.P10 order.
5. Undisputedly, the suit is of the year 2014. Ext.P8 commission report was filed by the Advocate Commissioner as early as on 08.01.2018. The petitioner was not aggrieved by Ext.P8 report until the suit was listed for trial on 06.07.2022. It is only on 18.07.2018, after the lapse of more than four years, that the petitioner has felt the necessity to file Ext.P9 objection to Ext.P8 report and Ext.P1 application. The OP(C) NO. 1604 OF 2022 4 same has been objected to by the respondent by filing Ext.P2 application.
The Court below, after considering the application and the objection, by the impugned order has dismissed Ext.P1 application on the ground that the same is filed with the oblique intention to protract the determination of the suit. I do not find any error or illegality in the impugned order and the conclusion arrived at 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 rkc/25.08.22 OP(C) NO. 1604 OF 2022 5 APPENDIX OF OP(C) 1604/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE I.A.NO.7 OF 2022 IN O.S.NO.2348/2014 DATED 18.07.2022 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFF ON 28.07.2022 Exhibit P3 TRUE COPY OF THE PLAINT IN O.S.NO.2348 OF 2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit P4 TRUE COPY OF THE ORDER DATED 12.09.2013 IN I.A.NO.2363/2013 IN A.S.NO.21/2012 OF THE ADDITIONAL DISTRICT COURT III, THIRUVANANTHAPURAM Exhibit P5 TRUE COPY OF THE I.A.NO.516/2018 IN O.S.NO.2348/2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 TO 3 IN O.S.NO.2348/2014 Exhibit P7 TRUE COPY OF THE I.A.NO.9844/2016 IN O.S.NO.2348/2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit P8 TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO. 2348/2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit P9 TRUE COPY OF THE OBJECTION TO THE COMMISSION REPORT FILED BY THE DEFENDANTS 1 TO 3 ON 18.07.2022 Exhibit P10 COPY OF THE ORDER DATED 03.08.2022 IN I.A.NO.7 OF 2022 IN O.S. NO.2348 OF 2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM