Anilkumar vs Marakkar
2021 Latest Caselaw 2286 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

   WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                     OP(C).No.3314 OF 2017(O)

AGAINST THE ORDER IN I.A.NO.279/2017 IN O.S.NO.34/2005 OF MUNSIFF
                   MAGISTRATE COURT,MANNARKKAD


PETITIONER/3RD PLAINTIFF:

             ANILKUMAR
             (L.I.C AGENT), AGED 48 YEARS,
             S/O.GOPALAN NAIR,
             KAROOTH PARAKKOTT HOUSE,
             KARKIDAMKUNNU P.O., MANNARKKAD TALUK,
             PALAKKAD DISTRICT.

             BY ADV. SRI.K.MOHANAKANNAN

RESPONDENT/1ST DEFENDANT:

             MARAKKAR
             S/O.KONHUMOIDU,
             ANAMANGADAN,KARKIDAMKUNNU P.O.,
             MANNARKKAD TALUK,
             PALAKKAD DISTRICT 678 601.


     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) No.3314/2017                 2




                             JUDGMENT

Dated this the 20th day of January 2021

The impugned Exhibit P7 order dated 9.8.2017 of the

Munsiff-Magistrate, Mannarkkad, is challenged by the aggrieved

petitioner/3rd plaintiff in this Original Petition filed under Article

227 of the Constitution of India.

2. The petitioner filed I.A.No.279 of 2017 in O.S.No.34

of 2005 seeking remittal of the Commission report dated

17.8.2016. It is submitted that many of the objections taken to

the report and plan were not considered by the court below. I did

not have the advantage of hearing the respondent who was

served in this proceeding.

3. The learned counsel for the petitioner submitted that

defendant No.2 had also taken serious objection to the report

and plan and sought for remittal of the same. Exhibit P6

objection dated 22.9.2016 filed by the first defendant also shows

that he too do not support the report and plan.

4. In that event, I wonder as to how the court below was

pleased to decline the request made by the petitioner for remittal

of the report. On looking at the entire facts on record, I am not

inclined to sustain the impugned order. It calls for interference.

In the result, this Original Petition is allowed setting aside

the impugned order. There will be a direction to the court below

to consider the objections raised by both of the parties to the

report and plan afresh and take appropriate decision in

accordance with law, after affording the parties sufficient

opportunities to substantiate their respective contentions. There

shall be further direction to the court below to dispose of the suit

as expeditiously as possible taking into account of the fact that

it is a suit of 2005.

Sd/-

T.V.ANILKUMAR JUDGE csl

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPORT FILED BY THE COMMISSIONER WITH SKETCH AND PLAN DATED 17/6/2011

EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA.500/2011 IN OS 34/2005 DATED 5/8/2011

EXHIBIT P3 TRUE COPY OF THE REPORT DATED 17/8/2016 FILED BY THE COMMISSIONER

EXHIBIT P4 TRUE COPY OF OBJECTION FILED BY THE PLAINTIFF TO THE COMMISSIONER'S REPORT DATED 10/3/2017

EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE PETITION TO REMIT THE COMMISSIONER'S REPORT AS I.A.NO.279/2017 IN O.S.NO.34/2005

EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST DEFENDANT FOR REMITTING THE REPORT DATED 22/9/2016

EXHIBIT P7 TRUE COPY OF THE I.A 279/2017 IN OS 34/2005 DATED 9/8/2017