Harikumar vs Siju
2021 Latest Caselaw 16631 Ker

  OP(C).1114/21                     1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                        OP(C) NO. 1114 OF 2021
  AGAINST THE ORDER/JUDGMENT IN OS 405/2017 OF MUNSIFF COURT,
                           PUNALUR, KOLLAM
PETITIONER/S:

    1       HARIKUMAR
            AGED 48 YEARS
            S/O.NANU PANICKER, RESIDING AT PUTHENVILA VEETTIL,
            KARIMPINKONAM, YEROOR VILLAGE, PUNALUR TALUK, KOLLAM
            DISTRICT - 692 001.

    2       SINDHU
            AGED 38 YEARS
            W/O.HARIKUMAR, PUTHENVILA VEETTIL, KARIMPINKONAM,
            YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT -
            692001.

    3       HRIDHYALAKSHMI
            AGED 13 YEARS
            D/O.HARIKUMAR, PUTHENVILA VEETTIL, KARIMPINKONAM,
            YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT - 692
            001. REPRESENTED BY FATHER HARIKUMAR, AGED 48 YEARS,
            S/O.NANU PANICKER, RESIDING AT PUTHENVILA VEETTIL,
            KARIMPINKONAM, YEROOR VILLAGE, PUNALUR TALUK, KOLLAM
            DISTRICT - 692 001.

    4       SREEHARI
            AGED 8 YEARS
            S/O.HARIKUMAR, PUTHENVILA VEETTIL, KARIMPINKONAM,
            YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT - 692
            001 REPRESENTED BY FATHER HARIKUMAR, AGED 48 YEARS,
            S/O.NANU PANICKER, RESIDING AT PUTHENVILA VEETTIL,
            KARIMPINKONAM, YEROOR VILLAGE, PUNALUR TALUK, KOLLAM
            DISTRICT - 692 001.

            BY ADV B.KRISHNA MANI



RESPONDENT/S:
   OP(C).1114/21                   2

    1       SAIJU
            AGED 47 YEARS
            S/O.KUMARAN, RESIDING AT CHITHIRAYIL, PANAYAM MURI,
            YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT- 691
            312.

    2       LEKHA
            AGED 35 YEARS
            W/O.SAIJU, RESIDING AT CHITHIRAYIL, PANAYAM MURI,
            YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT - 691
            312.

    3       RATHI
            AGED 55 YEARS
            D/O.SAROJINI, RESIDING AT CHITHIRAYIL, PANAYAM MURI,
            YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT - 691
            312.

    4       SUBASH
            AGED 48 YEARS
            S/O.SUKUMARAN, RESIDING AT PUTHEPURAYIL,
            KARIMPINKONAM, YEROOR, KOLLAM DISTRICT - 692 001.

    5       SAJU
            AGED 44 YEARS
            RESIDING AT SEENA BHAVAN, AYILARA, 2-EEKKAR, YEROOR,
            KOLLAM DISTRICT - 691 312.

    6       ANILKUMAR
            AGED 44 YEARS
            S/O.SUKUMARAN, RESIDING AT THENGUM PANAYIL VEEDU,
            KOMALAM, VADAKON, ANCHAL, KOLLAM DISTRICT - 691 306.

           R1 BY ADV SINDHU SANTHALINGAM




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 9.8.2021,
THE COURT ON 11.08.2021 DELIVERED THE FOLLOWING:
   OP(C).1114/21                        3




                               V.G.ARUN, J.
                -----------------------------------------------
                       O.P(C).No. 1114 of 2021
                -----------------------------------------------
              Dated this the 11th day of August, 2021

                               JUDGMENT

Petitioners are the plaintiffs in O.S.No.405 of 2017 on the files of

the Munsiff's Court, Punalur. The prayer in the suit is to declare Sale

Deed No.898 of 2015 as void and to set aside the document. The

other prayer is for a permanent prohibitory injunction restraining the

defendants from trespassing upon the plaint schedule property and

from committing waste therein. The plaint schedule property is 11.73

Ares (29 cents) with a building. The 1st respondent has filed

O.S.No.392 of 2017 pertaining to the very same property. The same

Advocate Commissioner appointed in both the suits, conducted

inspection and filed separate reports. Thereafter, the petitioners filed

an interlocutory application in O.S.No.405 of 2019, seeking the

appointment of a Civil Engineer as Commissioner, to measure the

building and to assess its value. Pending that application, the parties

approached this Court challenging certain other orders. By Exhibit P4

common order, this Court disposed the original petitions directing the

suits to be disposed of within eight months. The review petition filed

against Exhibit P4 judgment was dismissed as per Exhibit P5 order

and the trial court was directed to dispose the suits before the

ensuing summer vacation. Thereafter, the petitioner's application for

deputing a Civil Engineer was dismissed by the trial court as per

Exhibit P7 order. Aggrieved, this original petition is filed.

2. Sri.B.Krishna Mani, learned counsel for the petitioners

contended that Exhibit P7 order is patently illegal, inasmuch as the

order is passed without taking into account the relevant aspects. It is

contended that a report containing the exact plinth area of the

building in the plaint schedule property and its value is highly

essential for a just and proper decision in the case. It is submitted that

the specific averment in the suit is that the document sought to be

cancelled, though styled as a sale deed, is only a security document.

It is pointed out that the plinth area of the building is 731 square feet

as per Exhibit P9 sketch produced along with the Advocate

Commissioner's report in O.S.No.405 of 2017 and 831 square feet in

Exhibit P10 report filed in O.S.No.392 of 2017. Further, in Exhibit P8

Form appended to the Sale Deed, the area of the building is

mentioned as 400 square feet, whereas in Exhibit P11 proceedings of

the Secretary, Eroor Grama Panchayat, the area is shown as 80

square metre. It is contended that in view of the disparity in the area

in the reports and the documents, it is highly essential to get the area

ascertained through a qualified engineer.

3. Sri.P.Santhalingam, learned Senior Counsel appearing for the

1st respondent contended that the commission application is bereft of

bona fides and the only intention behind the application is to protract

the suits. It is contended that the petitioners did not file any objection

to the Advocate Commissioner's reports and hence, they are

precluded from seeking the appointment of another Commissioner. It

is contended that this Court having directed the suit to be disposed of

before the summer vacation of 2021, the dilatory tactics of the

petitioner was rightly repelled by the trial court.

4. Indisputably, the same Advocate Commissioner inspected the

plaint schedule property and building and has filed his reports. As

could be seen from Exhibit P9 sketch attached to the report in

O.S.No.405 of 2017, the Commissioner has measured each room in

the building separately. As discernible from Exhibit P10 report, the

same exercise was undertaken by the Advocate Commissioner during

his inspection in O.S.No.392 of 2017 also. None of the parties filed

objection to the reports. Going by Order XXVI Rule 10(3) CPC, a

further enquiry need be ordered by the court only if the Court is

dissatisfied with the proceedings of the Commissioner. The parties not

having objected to the Advocate Commissioner's report, there was no

reason for the Court to be dissatisfied with the report. In this context,

it is to be noted that in the counter affidavit filed by the 1 st

respondent, it is specifically stated that the documentary evidence

clearly reveals the house to be a small one with 700 square feet area.

The learned counsel for the petitioners raised an alternative plea that

in the event of this Court being not inclined to interfere with the

impugned order, the District Collector, who has taken over possession

of the plaint schedule property, may be directed to depute a qualified

person to measure the building.

5. I am not inclined to interfere with the impugned order or to

accede to the alternative suggestion put forth by the learned counsel.

It is settled law that an Advocate Commissioner's report is only a

piece of evidence. There being two Advocate Commissioners' reports,

against which no objection was raised by any of the parties, the court

below was fully justified in rejecting the application for appointing a

Civil Engineer as Commissioner. Hence, I find no reason to interfere

with the order in exercise of the supervisory jurisdiction.

In the result, the original petition is dismissed.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX OF OP(C) 1114/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT, O.S.405/2017 BEFORE THE MUNSIFF'S COURT, PUNALUR DATED 16/11/2017.

Exhibit P2 TRUE COPY OF THE PLAINT, O.S.398/2017 BEFORE THE MUNSIFF'S COURT, PUNALUR DATED 8/11/2017.

Exhibit P3 TRUE COPY OF THE APPLICATION, I.A.NO.3/2021 DATED 22/2/2021 IN O.S.NO.405/2017 BEFORE THE MUNSIFF'S COURT, PUNALUR.

Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 10/2/2020 IN O.P.(C) NO.2543/2018, BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.

Exhibit P5 TRUE COPY OF THE ORDER DATED 2/2/2021 IN R.P.NO.31/2021 IN OP(C) 2662/18 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.

Exhibit P6 TRUE COPY OF THE OBJECTION DATED 8/4/2021 IN OS 392/17.

Exhibit P7 TRUE COPY OF THE ORDER DATED 21/6/2021 IN I.A.3/2021 IN O.S.NO.405/17 BEFORE THE MUNSIFF'S COURT, PUNALUR.

Exhibit P8 TRUE COPY OF THE DOCUMENT PERTAINING TO THE DETAILS OF THE PROPERTY DATED 30/4/2015.

Exhibit P9 TRUE COPY OF THE ROUGH SKETCH PREPARED BY THE COMMISSIONER IN O.S.405/17 BEFORE THE MUNSIFF'S COURT, PUNALUR.

Exhibit P10 TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 9/11/2017 IN O.S.392/17 BEFORE THE MUNSIFF'S COURT, PUNALUR.

Exhibit P11 TRUE COPY OF THE PROCEEDING DATED 20/12/2017 ISSUED BY THE SECRETARY, YEROOR GRAMA PANCHAYAT UNDER THE RIGHT TO INFORMATION ACT.