A.S. Mathew vs Rajappan
2021 Latest Caselaw 23829 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
   SATURDAY, THE 4TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943
                          OP(C) NO. 20 OF 2019
  AGAINST THE ORDER/JUDGMENT IN OS 5/2016 OF SUB COURT, THIRUVALLA
PETITIONER/S:

           A.S. MATHEW
           AGED 80 YEARS
           S/O.SKARIA, APPAKOTUMURIYIL, THURUTHIKAD.P.O, KALLUPARA
           VILLAGE, PATHANAMTHITTA DISTRICT-689597.
           BY ADV G.SREEKUMAR (CHELUR)


RESPONDENT/S:

           RAJAPPAN
           AGED 57 YEARS
           S/O.RAMAKRISHNAN, VELIKATTU, PERINGOTTUKARA, KIZHAKUMURI
           VILLAGE, KIZHAKUMURI.P.O, THRISSUR-680571.
           BY ADVS.
           SRI.ANIL KUMAR SREEDHARAN
           SRI.SAJU JAKOB


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 20 OF 2019
                              2



                    JUDGMENT

Dated this the 4th day of December, 2021

The challenge in this original petition is against Exts.P8

and P9 orders, by which applications for receiving additional

evidence and for remitting the report of the Advocate

Commissioner were rejected. The dispute is based on the

execution of a sale deed by the petitioner. Petitioner

contends that the sale deed was executed as security and was

not intended to be acted upon. On the other hand,

respondent's contention is that the deed was executed after

payment of sale consideration. After the trial had commenced

and witnesses on both sides examined, petitioner filed Ext.P5

application seeking to reopen the evidence for the purpose of

examining some more witnesses. The reason stated is that,

during examination of PW4, he had stated that some other

persons had helped the respondent in raising the money OP(C) NO. 20 OF 2019

required for paying sale consideration and hence, it was

imperative to examine those persons as witnesses.

3. The prayer for remitting the Commissioner's report

was made on the premise that the Advocate Commissioner

had failed to report about cultivation in the plaint schedule

property, as also the crucial fact that the property is lying

contiguous to the properties described in Ext.A2 document

No.747 of 1980 of Mallappally SRO. Learned Counsel for the

petitioner contended that, examination of additional

witnesses and report of the Commissioner, is essential for a

just decision in the case.

4. Learned Counsel for the respondent submitted that,

all throughout, attempt of the petitioner was to protract the

proceedings. Referring to Ext.R1, copy of the proceedings of

the Sub Court, it is submitted that the plaintiff's evidence

commenced on 07.02.2018 and was completed on

29.05.2018. Thereafter, defendant was examined on OP(C) NO. 20 OF 2019

18.06.2018. Cross-examination of the defendants had to be

adjourned, as Counsel for the plaintiff was not ready. Even on

the adjourned date, DW1 was not cross-examined and hence,

the other defence witnesses were examined. Much later,

petitioner moved an application for re-opening the evidence

for cross-examining the defence witnesses. That application

was allowed on cost by proceedings dated 28.09.2018 and

the defence witnesses were cross-examined and evidence

closed on 15.12.2018. Thereupon, petitioner filed the

applications for appointment of Commissioner, to re-open the

evidence and to examine additional witnesses. It is submitted

that, on an earlier occasion also the petitioner had filed

witness schedule with very same witnesses named in Ext.P5.

Later, those witnesses were given up. It is contended that

the petitioner is hence estopped from filing another

application for the same purpose.

5. Having heard the learned Counsel on either side and OP(C) NO. 20 OF 2019

being convinced that the petitioner had been afforded

enough and more opportunity to examine his witnesses and

to seek remittance of the commissioner's report, I refrain

from interfering with the impugned orders. The fact that

earlier an application for examining the very same witnesses

was filed and not pursued, assumes relevance. The Advocate

Commissioner had filed Ext.P4 report way back on

26.10.2016 and no steps were taken by the petitioner to get

the report remitted or to examine the Advocate

Commissioner as witness. It is hence clear that the

applications are filed with sole intention of delaying the final

decision. In any event, the impugned orders do not warrant

interference in exercise of the supervisory power under

Article 227 of the Constitution of India.

In the result, the Original Petition is dismissed.

Sd/-

V.G.ARUN JUDGE RK OP(C) NO. 20 OF 2019

APPENDIX OF OP(C) 20/2019

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS NO.5 OF 2016 DATED 04/02/2016 ON THE FILE OF THE SUB COURT, THIRUVALLA.

EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT HEREIN IN EXT P1 SUIT DATED 13/12/2016.

EXHIBIT P3 A TRUE COPY OF THE REPLICATION FILED AT THE INSTANCE OF THE PETITIONER IN EXT P1 SUIT DATED 11/07/2017.

EXHIBIT P4 A TRUE COPY OF THE COMMISSIONER'S REPORT IN EXT P1 SUIT DATED 26/10/2016.

EXHIBIT P5 A TRUE COPY OF THE IA NO.847 OF 2018 FILED BY THE PETITIONER DATED 17/07/2018. EXHIBIT P6 A TRUE COPY OF THE IA NO.874 OF 2018 FILED BY THE PETITIONER DATED 18/12/2018. EXHIBIT P7 A TRUE COPY OF THE IA NO.873 OF 2018 DATED 18/12/2018.

EXHIBIT P8 A TRUE COPY OF THE ORDER PASSED IN IA NO.847 OF 2018 IN EXT P1 SUIT ON THE FILE OF THE SUB COURT, THIRUVALLA DATED 18/12/2018.

EXHIBIT P9 A TRUE COPY OF THE ORDER PASSED IN IA.

NO.873 OF 2018 IN EXT P1 SUIT DATED 18/12/2018 ON THE FILE OF THE SUB COURT, THIRUVALLA.

RESPONDENT' EXHIBITS EXHIBIT R1 TRUE COPY OF PROCEEDINGS IN O.S.NO.5 OF 2016 OF SUB COURT, THIRUVALLA