Joseph vs K.N. Babu
2021 Latest Caselaw 5190 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

    FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                          OP(C).No.316 OF 2021

     I.A. 13/2020 IN OS 13/2014 OF SUB COURT, MUVATTUPUZHA

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PETITIONER/PETITIONER/2ND DEFENDANT:

             JOSEPH
             AGED 80 YEARS
             S/O.SKARIA, KUNNAMKOTTU HOUSE, ANICAD KARA,
             MUVATTUPUZHA VILLAGE, AVOLY P.O., MUVATTUPUZHA,
             PIN-686670.

             BY ADVS.
             SRI.K.K.CHANDRAN PILLAI (SR.)
             SMT.S.AMBILY
             SHRI.MICKY THOMAS

RESPONDENTS/RESPONDENTS/PLAINTIFF & 1ST DEFENDANT:

      1      K.N. BABU
             AGED 60 YEARS
             SON OF NARAYANAN, KUNNATHEL HOUSE, ARIKKUZHA KARA,
             MANAKKADU VILLAGE, ARIKUZHA P.O., THODUPUZHA TALUK,
             PIN-685508.

      2      V.M.JOSE,
             AGED 58 YEARS
             S/O.MATHAI, VETTIYANKAL HOUSE, MANJALLOOR KARA,
             MANJALLOOR VILLAGE, MANJALLOOR P.O., MUVATTUPUZHA
             TALUK, PIN-686670.

             R1   BY   ADV.   SRI.P.B.KRISHNAN
             R1   BY   ADV.   SRI.P.B.SUBRAMANYAN
             R1   BY   ADV.   SRI.SABU GEORGE
             R1   BY   ADV.   SRI.MANU VYASAN PETER
             R1   BY   ADV.   SRI.M.K.SREEGESH

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
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                   O. P. (C) No.316 of 2021
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           Dated this the 12th day of February, 2021

                           JUDGMENT

The dismissal of an application seeking

issuance of a commission is under challenge by the second defendant-petitioner in the application.

      2.        Heard       learned              Senior        Counsel

Sri.K.K.Chandran          Pillai,      on        behalf       of    the

petitioner-second         defendant      and      learned      counsel

Sri.P.B.Krishnan on behalf of the first respondent-

plaintiff.

3. The suit is one for specific performance of

an agreement for sale. The defence is that there

was only a money transaction between the plaintiff

and the first defendant; the alleged agreement is

denied. Trial in the suit commenced. The plaintiff

and four witnesses were examined. At that juncture,

the second defendant filed an application for

issuance of a commission. Paragraph 4 of the

affidavit filed in support of the application reads

thus:-

O. P. (C) No.316 of 2021

"At the time of evidence, PW1 plaintiff categorically and specifically stated that Plaint A and B schedule properties are lying contiguously within the common boundaries, as stated in Ext.A1 document. My specific case is that there is a distance of about 300-350 metres between the plaint A and B schedule properties. The plaint A and B schedule properties purchased by me from the 1st defendant with due consideration. I am the bona fide purchaser of the property for valid consideration. I am having no option than filing a Commission Application to bring out the true facts before this Hon'ble Court. Since the true fact is that plaint A and B schedule properties are not lies within the common boundaries, I never expected that the plaintiff will give evidence against the true facts. There is no delay in filing this petition."

4. It appears that a commission is sought to be

taken out to place before the court the lie of the

plaint 'A' and 'B' schedule properties. The purpose

being to prove that the plaintiff is unaware of the

lie of the properties; this is in support of the O. P. (C) No.316 of 2021

plea that the transaction between the plaintiff and

the defendant is only a money transaction. By

taking out a commission, the second defendant also

seeks to establish possession over the property.

5. On the facts and circumstances as noticed, I

am of the opinion that the commission could be

issued for the limited purpose of ascertaining the

lie of the plaint 'A' and 'B' schedule properties

as has been mentioned in paragraph 4 of the

affidavit filed in support of the application which

has been noted supra. The plaint allegation being

that defendants 1 and 2 are colluding together, and

since admittedly the plaintiff is not in

possession, the prayer to open the building in the

property etc. are not necessary. Therefore, item

nos.1 to 3 and 6 in the matters sought to be

ascertained in IA 20/2020, can be permitted to be

ascertained by the commissioner. Since the trial of

the suit is half way through, the commissioner

shall be required to conduct inspection and submit

report within ten days from the date of appointment

of the commissioner. On the submission of the O. P. (C) No.316 of 2021

report by the commissioner, if the plaintiff seeks

for opportunity to adduce further evidence,

including by re-examining himself or by recalling

any of the witnesses already examined, the same

shall be permitted by the court.

With the above directions, the original

petition is disposed of.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge OP(C).No.316 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 COPY OF AGREEMENT DATED 18.03.2011 EXECUTED BETWEEN THE DEFENDANT AND THE PLAINTIFF.

EXHIBIT P2 COPY OF THE COMMISSION APPLICATION I.A.NO.13 OF 2020 DATED 09.11.2020 FILED BY THE PETITIONER BEFORE THE SUB COURT, MUVATTUPUZHA.

EXHIBIT P3 COPY OF COUNTER AFFIDAVIT DATED 18.11.2020 FILED BY THE 1ST RESPONDENT IN I.A.NO.13 OF 2020.

EXHIBIT P4 COPY OF PLAINT IN O.S.NO.13/2014 DATED 13.03.2014 ON THE FILE OF THE SUB COURT, MUVATTUPUZHA.

EXHIBIT P5 COPY OF WRITTEN STATEMENT DATED NIL FILED BY THE 2ND DEFENDANT IN O.S.NO.13/2014 ON THE FILE OF THE SUB COURT, MUVATTUPUZHA.

EXHIBIT P6             COPY OF WRITTEN STATEMENT DATED 21.08.2014
                       FILED    BY   THE    2ND   RESPONDENT   IN

O.S.NO.13/2014 ON THE FILE OF THE SUB COURT, MUVATTUPUZHA.

EXHIBIT P7 COPY OF ORDER DATED 12.01.2021 OF THE SUB COURT, MUVATTUPUZHA.

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