IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
OP(C) NO. 1153 OF 2022
AGAINST THE COMMON ORDER DATED 3.3.2022 IN I.A.NO.2/2022 IN
O.S.NO.166/2013 AND IN I.A.NO.3/2022 IN O.S.NO.215/2014 AND
ORDER DATED 2.2.2022 IN I.A.NO.1/2022 IN O.S.NO.215/2014 OF
THE MUNSIFF COURT, PUNALUR
PETITIONER/1ST PETITIONER/1ST PLAINTIFF IN O.S.NO.215/2014
AND 1ST DEFENDANT IN O.S.NO.166/2013
ELYKUTTY MATHAI,
AGED 69 YEARS,
W/O. MATHAI,
AMARAKARAYIL NAIKAMPARAMBIL VEEDU,
MADAPPALLY P.O,
CHANGANACHERRY TALUK,KOTTAYAM,
PIN - 686546
BY ADVS. V.PHILIP MATHEWS
ANZIL ZACHARIAH
E.RADHAKRISHNAN
RESPONDENTS/ RESPONDENTS AND PETITIONERS 2 AND 3/ 1ST
DEFENDANT IN O.S.NO.215/2014 AND PLAINTIFFS 2 AND 3 AND
PLAINTIFF AND DEFENDANTS 2 AND 3 IN O.S.NO.166/2013
1 THOMAS KUNJUKUNJU,
AGED 73 YEARS,
S/O. VARGHESE,
NAIKAMPARAMPIL VEEDU(CHARUVILA PUTHEN VEEDU )
PUNNALA P.O,
PUNNALA VILLAGE
PATHANAPURAM TALUK,
KOLLAM, PIN - 689696
2 BINU MATHAI,
S/O. MATHAI,
AMARAKARAYIL NAIKAMPARAMPIL VEEDU,
MADAPPALLY P.O, CHANGANACHERRY TALUK
KOTTAYAM , PIN - 686546
O.P.(C)No.1153/2022
-:2:-
3 BINDU MATHAI,
D/O. MATHAI,
AMARAKARAYIL NAIKAMPARAMPIL VEEDU
MADAPPALLY P.O, CHANGANACHERRY TALUK,
KOTTAYAM, PIN - 686546
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1153/2022
-:3:-
Dated this the 6th day of July,2022
JUDGMENT
The original petition is filed challenging the order dated 03.03.2022 in I.A.No.2/2022 in O.S.No.166/2013 and I.A.No.3/2022 in O.S.No.215/2014(Ext.P5) of the Court of the Munsiff, Punalur, and the order dated 02.02.2022 in I.A.No.1/2022 in O.S.No.215/2014 (Ext.P9) of the same court.
2. The petitioner's case, in brief, in the memorandum of the original petition is that; she is the first plaintiff in O.S.No.215/2014 and the first defendant in O.S.No.166/2013. The respondents in the original petition are the first defendant and the plaintiffs 2 and 3 in O.S.No.215/2014, and the first respondent is also the plaintiff in O.S.No.166/2013 and the respondents 2 and 3 are defendants 2 and 3 in the above suit. The parties O.P.(C)No.1153/2022 -:4:- are, for the sake of convenience, referred to as per their status in the original petition.
3. The petitioner and her daughters - respondents 2 and 3 - have filed O.S.No.215/2014 against the first respondent, inter alia, for a decree to set aside the Deed No.73/2003 executed in favour of the first respondent. On the other hand, the first respondent has filed O.S.No.166/2013 against the petitioners and respondents 2 and 3, inter alia, for a decree of permanent prohibitory injunction. The petitioner and the respondents 2 and 3 had filed Ext.P4 application to depute an Advocate Commissioner with the assistance of a Surveyor to demarcate the property. The application was opposed by the first respondent. The court below has by the impugned Ext.P5 order rejected the application. Similarly, the petitioner had also filed Ext.P8 application to compare the signature of her husband on Deed No.73/2003 by an expert. The O.P.(C)No.1153/2022 -:5:- said application was also objected by the first respondent. The court below has by the impugned Ext.P9 order, dismissed the said application. Both Exts.P5 and P9 are erroneous and wrong. Hence, the original petition.
4. Heard; Sri. V. Philip Mathew, the learned counsel appearing for the petitioner.
5. The points that arise for consideration in this original petition are:
(i) whether there is any illegality in Ext.P5 order;
(ii) whether there is any illegality in Ext.P9 order.
6. Admittedly, the petitioner and the respondents 2 and 3 have filed O.S.No.215/2014 seeking to set aside a sale deed. It is the first respondent who has filed O.S.No.166/2013, seeking a decree for permanent prohibitory injunction. An O.P.(C)No.1153/2022 -:6:- Advocate Commissioner has filed a report and plan in O.S.No.166/2013 as early as on 22/05/2019. The petitioner has not even bothered to file an objection to the report. The property has been well identified by the Advocate Commissioner. The court below has scrutinised the report and found the same to be in order. It is only when the suit was listed for trial, that the petitioner has come up with the present application. An Advocate Commissioner's report is not something that can be set aside on the mere asking of a party. The necessity of remitting the commission report does not arise. I do not find any illegality in Ext.P5 order passed by the court below warranting interference by this Court under Article 227 of the Constitution of India. Thus, I find Point No.1 against the petitioner and confirm Ext.P5 order.
7. The next point is whether there is any necessity to send the Deed bearing No.73/2003 for O.P.(C)No.1153/2022 -:7:- forensic examination. It is seen from the records, this Court, in an earlier round of litigation between the parties in O.P.(C) No.8/2022, had declined the very same relief sought for by the petitioner. It is, thereafter, that the petitioner has filed Ext.P8 application for an identical relief. The court below has rightly dismissed the application with costs. I fully endorse the course adopted by the court below. There is no irregularity or illegality in Ext.P9 order.
In the result, this original petition is dismissed, confirming Exts.P5 and P9 orders passed by the court below.
Sd/-
C.S.DIAS,JUDGE
DST/06.07.22 //True copy//
P.A.To Judge
O.P.(C)No.1153/2022
-:8:-
APPENDIX
PETITIONER EXHIBITS
EXHIBIT1 COPY OF PLAINT O.S NO. 215/2014 ON THE
FILE OF MUNSIFF'S COURT, PUNALUR
EXHIBIT2 COPY OF PLAINT O.S NO. 166/2013 ON THE
FILE OF MUNSIFF COURT, PUNALUR
EXHIBIT P3 COPY OF I.A NO. 2/2022 IN O.S NO.
166/213
EXHIBIT4 COPY OF I.A.NO. 3/2022 IN O.S
NO.215/2014 ON THE FILE OF MUNSIFF'S
COURT, PUNALUR
EXHIBIT P5 COPY OF COMMON ORDER DATED 3.3.2022 IN
EXHIBITS P3 AND P4
EXHIBIT P6 COPY OF PROCEEDINGS PAPER IN THE COURT
OF MUNSIFF, PUNALUR IN RESPECT OF O.S NO. 166/2013 EXHIBIT P7 COPY OF PROCEEDINGS PAPER IN THE COURT OF MUNSIFF, PUNALUR IN RESPECT OF O.S. NO. 215/2014 EXHIBIT P8 COPY OF APPLICATION CONTAINED IN PASSPORT AND THE SIGNATURE IN DEED NO. 73/2003 EXHIBIT P9 COPY OF ORDER DATED 2.2.2022 IN I.A NO.
1/2022 IN O.S NO. 215/20174 (EXHIBIT P8) RESPONDENT'S EXHIBITS: NIL