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OP (C)No. 106 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
OP(C) NO. 106 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 257/2019 OF II ADDITIONAL
MUNSIFF COURT ,NEYYATTINKARA
PETITIONER/S:
G.SURENDRAN
AGED 56 YEARS
S/O.GANGADHARAN NADAR, MUPPARATHALAIKAL GLORI
BHAVAN, MARUKIL, PALLICHAL VILLAGE,
THIRUVANANTHAPURAM.
BY ADV M.SREEKUMAR
RESPONDENT/S:
1 STEPHAN
S/O.DANIEL, MUPPARATHALAIKAL PUTHEN VEEDU,,
MARUKIL, PALLICHAL P.O., NEYYATTINKARA,
THIRUVANANTHAPURAM-695020.
2 JIJI STEPHAN,
D/O.LEELA, MUPPARATHALAIKAL PUTHEN VEEDU,, MARUKIL,
PALLICHAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-
695020.
3 PAVIN ANTO,
S/O.G.SURENDRAN, MUPPARATHALAIKAL GLORI BHAVAN,
MARUKIL, PALLICHAL P.O., NEYYATTINKARA,
THIRUVANANTHAPURAM-695020.
BY ADVS.
SRI.V.G.ARUN (K/795/2004)
SMT.V.JAYA RAGI
SRI.NEERAJ NARAYAN
SRI.R.HARIKRISHNAN (KAMBISSERIL)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP (C)No. 106 of 2020
C.S DIAS,J.
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OP (C)No. 106 of 2020
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Dated this the 7th day of July, 2022.
JUDGMENT
The original petition is filed challenging the common order dated 10.12.2019 passed by the Court of the Additional Munsiff-II, Neyyattinkara in IA Nos.7120 and 7427 of 2019 (Ext P12) in O.S No.257/2019.
2. The petitioner's case, in a nutshell, relevant for the determination of the original petition is that, he is the first defendant in the above suit, which is filed by the respondents 1 and 2, seeking a decree of permanent perpetual injunction against the petitioner and the third respondent. The learned Munsiff had by Ext P8 common order passed the following directions:
In the result, IA No.1938/2019 is allowed and IA No.3384/2019 is partly allowed as follows: 3 OP (C)No. 106 of 2020
1) The respondents are restrained by an order of temporary injunction from making any construction by taking any portions of plaint A schedule property and from making construction within the plaint B schedule property without leaving sufficient space/set back as mandated by Kerala Panchayat Building Rules, 2011 until disposal of the suit.
2) The petitioners are restrained by an order of temporary injunction from trespassing into the petition schedule property in IA No.3384/2019 and from obstructing the construction of residential building within the petition schedule property as per the building permit, Ext B6.
3) There shall be no order as to cost.
2.1 Alleging violation of Ext P8 order, the respondents 1 and 2 had filed Ext P9 application under Order 39 Rule 2A of the Code of Civil Procedure, seeking prosecution. To substantiate their contentions in Ext P9, the respondents 1 and 2 had filed Ext P10 application, seeking the appointment of an Advocate Commissioner. The petitioner had also filed Ext P11 application to appoint an Advocate Commissioner. However, the court 4 OP (C)No. 106 of 2020 below, by the impugned Ext P12 order, allowed Ext P10 commission application and dismissed Ext P11 commission application. It is aggrieved by the above course of the court below that the petitioner has approached this Court.
3. Heard; Sri.M.Sreekumar, the learned counsel appearing for the petitioner and Sri.V.G Arun, the learned counsel appearing for the respondents 1 and 2.
4. When the original petition was taken up for consideration, the learned counsel appearing for the respondents 1 and 2 submitted that the respondents 1 and 2 have no much grievance in an Advocate Commissioner also elucidating the matter that have been sought for by the petitioner in Ext P11 commission application. Even though the court below has rejected Ext P11 application, the respondents 1 and 2 have been put to severe hardship since the suit has been stayed for the last more than 2 ½ years. Hence, Ext P12 common order may be modified to the limited extent of dismissing Ext P11 application and the same Advocate 5 OP (C)No. 106 of 2020 Commissioner may be directed to elucidate the matters sought for by the petitioner in Ext P11 application. I find the course suggested by the learned counsel appearing for the respondents 1 and 2 to be reasonable and fair. Moreover, no prejudice will be caused to the respondents 1 and 2 if matters sought for in Ext P11 are also identified.
In the above legal and factual matrix, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I modify Ext P12 order by allowing Ext P11 application also. Both the petitioner and the respondents would be at liberty to also file their work memos before the Advocate Commissioner. The Advocate Commissioner shall as per the same terms and conditions in Ext P12 order, inspect the property and file the report touching on matters sought for in Exts P10 and P11 applications and the work memos submitted by the respective parties. Since the suit is of the year 2019, I direct the court of the Additional Munsiff-II, 6 OP (C)No. 106 of 2020 Neyyattinkara, to consider and dispose of the same, in accordance with law, as expeditiously as possible.
sd/-
sks/7.7.2022 C.S.DIAS, JUDGE
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OP (C)No. 106 of 2020
APPENDIX OF OP(C) 106/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IS OS NO.257/2019
ON THE FILE OF THE ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA DATED 14.3.2019 FILED BY RESPONDENTS 1 & 2.
EXHIBIT P2 TRUE COPY OF PETITION IN IA NO.1938/19 IN OS NO.257/19 DATED 14.3.2019 FILED BY RESPONDENTS 1 & 2.
EXHIBIT P3 TRUE COPY OF OBJECTION FILED BY PETITIONER AND 3RD RESPONDENT TO EXT.P2 DATED 1.4.2019.
EXHIBIT P4 TRUE COPY OF PETITION IN IA NO.3384/19 IN OS NO.257/19 DATED 12.6.2019 FILED BY PETITIONER.
EXHIBIT P5 TRUE COPY OF COUNTER AFFIDAVIT FILED BY RESPONDENTS 1 & 2 TO EXT.P4 DATED 22.7.2019.
EXHIBIT P6 TRUE COPY OF THE COMMISSIONER REPORT DATED 30.3.2019 IN OS NO.257/19.
EXHIBIT P7 TRUE COPY OF ROUGH SKETCH FILED BY ADVOCATE COMMISSIONER IN OS NO.257/19. EXHIBIT P8 TRUE COPY OF ORDER DATED 3.8.2019 IN IA NOS.1938/2019 & 3384/2019 IN OS NO.257/2019 OF ADDITIONAL MUNSIFF COURT- II, NEYYATTINKARA.
EXHIBIT P9 TRUE COPY OF PETITION IN IA NO.7122/19 IN OS NO.257/19 DATED 21.11.2019 FILED BY RESPONDENTS 1 & 2.
EXHIBIT P10 TRUE COPY OF PETITION IN IA NO.7120/19 IN OS NO.257/19 DATED 21.11.2019 FILED BY RESPONDENTS 1 & 2.
EXHIBIT P11 TRUE COPY OF PETITION IN IA NO.7427/19 IN OS NO.257/19 DATED 3.12.2019 FILED BY PETITIONER & 3RD RESPONDENT.
EXHIBIT P12 TRUE COPY OF COMMON ORDER IN IA NO.7120/19 & IA NO.7427/19 IN OS NO.257/2019 DATED 10.12.2019 OF THE ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA.