Kerala High Court
A.C.Laalan vs Ajayan on 13 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
OP(C).No.1893 OF 2020
AGAINST THE ORDER DATED 23.11.2020 IN I.A. NO.1/2020 IN OS
418/2020 OF ADDITIONAL MUNSIFF COURT,CHERTHALA
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PETITIONER:
A.C.LAALAN
AGED 52 YEARS
S/O. CHELLAPPAN, PUTHENVELI,
THANNERMUKKOM VADAKKU VILLAGE,
VARANAM P.O, PIN 688 555, CHERTHALA.
BY ADV. SRI.ROY CHACKO
RESPONDENTS/DEFENDANTS:
1 AJAYAN
AGED 41 YEARS
SHALINI BHAVAN, CHERUVARANAM MURI,
THANNEERMUKKOM VADAKKU VILLAGE,
VARANAM P.O, CHERTHALA, PIN 688 555
2 SHALINI,
AGED 38 YEARS
W/O. AJAYAN,SHALINI BHAVAN, CHERUVARANAM MURI,
THANNEERMUKKOM VADAKKU VILLAGE,
VARANAM P.O, CHERTHALA, PIN 688 555
R1-2 BY ADV. DR.V.N.SANKARJEE
R1-2 BY ADV. SRI.V.N.MADHUSUDANAN
R1-2 BY ADV. SMT.R.UDAYA JYOTHI
R1-2 BY ADV. SRI.M.M.VINOD
R1-2 BY ADV. SMT. KEERTHI B. CHANDRAN
R1-2 BY ADV. SHRI.VIJAYAN PILLAI P.K.
R1-2 BY ADV. SRI.C.PURUSHOTHAMAN NAIR
R1-2 BY ADV. SHRI.PATHROSE C.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
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O.P(C) No.1893 of 2020
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Dated this the 13th day of January, 2021
JUDGMENT
The petitioner is the defendant in a suit for
realisation of damages. The cause of action for the
suit emerges from a construction agreement. The
respondent-plaintiff is the owner and the petitioner-
defendant was the contractor.
2. The respondent - plaintiff filed application
for issuance of a commissioner to report about the
defective construction. The petitioner filed
objections wherein he also sought for ascertainment of
certain facts. Facts sought to be ascertained by him
was about a pond alleged to have been in existence at
the site over which the building in question is stated
to have been constructed. The court below held that
since the building has been constructed over the pond
allegedly in existence, the request cannot be
O.P.(C) No.1893/2020
-: 2 :-
permitted.
3. The learned counsel for the petitioner -
defendant submits that the necessary details with the
specifics which would enable ascertainment of the
existence of a pond earlier or at least the nature of
the soil, were omitted to be mentioned in the
affidavit and the work memo and that the petitioner
may be permitted to file another application providing
the necessary details. I am of the opinion that the
permission as sought for can be granted.
In the result, the order impugned dated
23.11.2020 is set aside granting liberty to the
petitioner to file a fresh application with a work
memo. Application if any, shall be filed within two
weeks from today. The trial court shall consider the
application on its merits and pass appropriate orders.
Sd/- Sathish Ninan, Judge
vdv
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PLAINT DATED 07-09-2020 IN O.S
418/2020 ON THE FILE OF THE MUNSIFF COURT,
CHERTHALA
EXHIBIT P2 TRUE COPY OF APPLICATION FOR ISSUE OF
COMMISSION DATED 07-09-2020 IN I.A NO.
1/2020 IN O.S NO. 418/2020 ON THE FILE OF
MUNSIFF COURT, CHERTHALA
EXHIBIT P3 TRUE COPY OF OBJECTIOND ATED 19-11-2020 IN
I.A NO. 1/2020 IN O.S NO. 418/2020 ON THE
FILE OF THE MUNSIFF COURT, CHERTHALA
EXHIBIT P4 TRUE COPY OF ORDER DATED 23-11-2020 PASSED
IN I.A NO.1/2020 IN O.S NO. 418/2020 PASSED
BY MUNSIFF COURT, CHERTHALA.
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