Kerala High Court
Thunoli Narayani vs Kazhakakkarathi Yesoda on 19 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942
OP(C).No.1269 OF 2020
AGAINST THE ORDER IN I.A.NO.56 OF 2020 IN OS 78/2015 DATED
22.06.2020 BEFORE THE MUNSIFF'S COURT, PAYYANNUR
PETITIONER/REVIEW PETITIONER/DEFENDANT:
THUNOLI NARAYANI,
AGED 68 YEARS,
W/O. BALAN, N.B. BHAVAN, NEAR KELTRON NAGAR,
DHARMASALA, KALLIASSERY, TALIPARAMBA TALUK,
KANNUR DISTRICT.
BY ADV. SRI.K.S.FRIJO
RESPONDENT/RESPONDENT/PLAINTIFF:
KAZHAKAKKARATHI YESODA, AGED 67 YEARS,
W/O. RAGHAVAN, KAZHAKAKKARAN HOUSE,
MOOSARIKKOVAL, KUNZHIMANGALAM DESOM, KANNUR
DISTRICT - 670309.
R1 BY ADV. SRI.MAHESH V RAMAKRISHNAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).No.1269 OF 2020 2
JUDGMENT
Review petition filed by the defendant in
O.S.No.78 of 2005 was dismissed by the learned
Munsiff, Payyannur by Ext.P10 impugned order
dated 22.6.2020. In the suit filed for declaring
right of easement claimed by the plaintiff, an
advocate commissioner was taken out and he filed
a report. The defendant contended before the
court below that some of essential matters which
required to be ascertained by the commissioner
and also pointed out to him, were not
deliberately taken note of and reported before
the court. Challenging the report, the defendant
filed I.A. No.1180 of 1919. The court below
allowed the application.
2. While allowing the application, the
court below chose to appoint the same
commissioner, who prepared the impugned report.
Defendant sought to review the order passed by
the court below by filing I.A.56 of 2020
contending that some other commissioner ought to
have been nominated in the place of the existing
commissioner. It was dismissed by the impugned
order. That is how the matter came up in this
O.P before me.
3. I heard the learned counsel for the
petitioner/defendant as well as the
respondent/plaintiff.
4. The substantial grievance expressed by
the learned counsel appearing for the petitioner
is that if the same commissioner is deputed to
ascertain matters which he is alleged to have
deliberately omitted to report, it would be a
case of denial of justice to the petitioner. It
was pointed out that there is an old mud wall in
existence in the survey line separating the
properties of the parties and further, there are
other alternative pathways also available for
plaintiff to access her land. I am not
expressing anything on merits of the objections
raised to the report. It suffices to say that
when the petitioner had serious grievance and
has raised an objection that the essential facts
required for decision of issues arising in the
suit were deliberately withheld by the former
commissioner, the court below should have been
fair enough to oblige the request made by the
petitioner for deputing another commissioner.
5. After hearing the counsel appearing on
both sides, I have reason to hold that a just
decision was not taken in considering the review
application. Review of the order and
consequential nomination of a new commissioner
in lieu of the former commissioner are not going
to cause any prejudice to the plaintiff.
In the result, OP is allowed, setting aside
the impugned order disallowing review.
I.A.No.56 of 2020 is allowed. The court below
is called upon to appoint a new advocate
commissioner to report matters sought to be
ascertained in I.A.No.1180 of 2019. Being a
suit of 2015, the learned Munsiff may take all
earnest effort to dispose of the same within a
period of six months from the date of receipt of
a certified copy of this judgment.
sd/-
T.V.ANILKUMAR,
JUDGE
pm
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS. NO.78 OF
2015,
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE PETITIONER IN OS NO.78 OF 2015.
EXHIBIT P3 TRUE COPY OF THE ROUGH SKETCH PREPARED
AND FILED BY THE ADVOCATE COMMISSIONER
DATED 06.02.2017 IN EP NO. 61 OF 2015 IN
OS 152 OF 2001.
EXHIBIT P4 TRUE COPY OF THE ADDITIONAL COMMISSION
REPORT AND ROUGH SKETCH FILED BY THE
ADVOCATE COMMISSIONER DATED 27.09.2018
IN EP NO.61 OF 2015 IN OS NO.152 OF
2001.
EXHIBIT P5 TRUE COPY OF THE COMMISSION REPORT AND
ROUGH SKETCH FILED BY THE ADVOCATE
COMMISSIONER DATED 27.06.2018 IN IA NO.
806 OF 2017 IN OS NO.78 OF 2015.
EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER TO EXHIBIT P5 AND P5(a)
REPORT.
EXHIBIT P7 TRUE COPY OF IA NO. 1180 OF 2019
EXHIBIT P8 TRUE COPY OF THE ORDER IN IA NO.1180 OF
2019 DATED 20.12.2019.
EXHIBIT P9 TRUE COPY OF IA NO. 56 OF 2020.
EXHIBIT P10 TRUE COPY OF THE ORDER IN IA NO. 56 OF
20 DATED 22.06.2020.
RESPONDENT'S EXHIBITS: NIL
