Kerala High Court
Magi Jose vs Unknown on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
OP(C).No.211 OF 2021
AGAINST THE ORDER DATED 13.01.2021 IN I.A.NO. 2/2020 IN OS.NO.
824/2016 OF MUNSIFF'S COURT, NORTH PARAVUR
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PETITIONERS/APPLICANTS IN I.A/DEFENDANTS 1,2 & 4 IN THE SUIT:
1 MAGI JOSE
AGED 50 YEARS
W/O.JOSE, NELLIKKUNNASSERY HOUSE, PAVANKADAVU,
THUDATHUMKADAVU, VARAPUZHA VILLAGE,
ERNAKULAM DISTRICT, PIN-683517.
2 BENNO,
AGED 55 YEARS
S/O.VARGHESE, NELLIKKUNNASSERY HOUSE, PAVANKADAVU,
THUDATHUMKADAVU, VARAPUZHA VILLAGE,
ERNAKULAM DISTRICT, PIN-683517.
3 JAISON,
AGED 42 YEARS
S/O.VARGHESE, NELLIKKUNNASSERY HOUSE, PAVANKADAVU,
THUDATHUMKADAVU, VARAPUZHA VILLAGE,
ERNAKULAM DISTRICT, PIN-683517.
BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
RESPONDENTS/RESPONDENTS IN I.A. PLAINTIFFS AND DEFENDANTS 3 & 5 IN
THE SUIT:
1 LOUISE BABU
AGED 42 YEARS
S/O.GEORGE, PALLIPARAMBIL HOUSE,
THUNDATHUMKADAVU P.O., VARAPUZHA,
ERNAKULAM DISTRICT, PIN-683517.
OP(C).No.211 OF 2021
2 SEENA JOHNY,
AGED 48 YEARS
W/O.JOHNY, MULLASSERY HOUSE, THUNDATHUMKADAVU P.O.,
VARAPUZHA, ERNAKULAM DISTRICT, PIN-683517.
3 MILTON (MINOR),
AGED 16 YEARS
S/O.JOHNY, REPRESENTED BY HIS MOTHER AND GUARDIAN,
RESPONDENT NO.2 SEENA JOHNY, MULLASERI HOUSE,
THUNDATHUMKADAVU P.O., VARAPUZHA, ERNAKULAM
DISTRICT, PIN-683517.
4 CHINJU JOHNI,
AGED 22 YEARS
D/O.JOHNY, MULLASERY HOUSE, THUNDATHUMKADAVU P.O.,
VARAPUZHA, ERNAKULAM DISTRICT, PIN-683517.
5 CHINNU JOHNY,
AGED 24 YEARS
D/O.JOHNY, MULLASERY HOUSE, THUNDATHUMKADAVU P.O.,
VARAPUZHA, ERNAKULAM DISTRICT, PIN-683517.
6 BOBAN @ KARLOSE M.D.,
AGED 56 YEARS
S/O.THOMMANKUTTY, MULLASERY HOUSE,
THUNDATHUMKADAVU P.O., VARAPUZHA,
ERNAKULAM DISTRICT, PIN-683517.
7 WILLIAM,
AGED 50 YEARS
S/O.THOMMANKUTTY, MULLASERY HOUSE, THUNDATHUMKADAVU
P.O., VARAPUZHA, ERNAKULAM DISTRICT, PIN-683517.
8 PHILOMINA PEEYOOS,
AGED 50 YEARS
D/O.THOMMANKUTTY, MULLASERY HOUSE,
THUNDATHUMKADAVU P.O., VARAPUZHA,
ERNAKULAM DISTRICT, PIN-683517.
9 LIJI JOSEPH,
AGED 42 YEARS
W/O.JIJU, AMBALATHINKAL HOUSE, PAVANAKADAVU,
THUNDATHUMKADAVU P.O., VARAPUZHA, ERNAKULAM
DISTRICT, PIN-683517.
OP(C).No.211 OF 2021
10 VARAPUZHA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, VARAPUZHA GRAMA
PANCHAYATH, VARAPUZHA, PIN-683517.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.211 of 2021
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Dated this the 21st day of January, 2021
JUDGMENT
The petitioners are defendants 1, 2 and 4 in a
suit for prohibitory injunction. They are
challenging the dismissal, by the trial court, of
their application seeking issuance of a Commission.
2. Whether the plaint 'A' and 'B' schedule is a
public way or not is the dispute involved in the
suit. The petitioners sought issuance of a
Commission to ascertain certain aspects regarding
the way ('A' and 'B' schedule). Along with the
suit, the plaintiffs have taken out an ex parte
commission who has filed a report and sketch. The
learned Munsiff noticed that the report gives
necessary details regarding the way. While it is
true that it is only an ex-parte report that the
examination of the Commissioner is necessary to
make the contents admissible, the fact remains that
such a report is available. A Commissioner cannot
report whether the way in question is a public way
O. P. (C) No.211 of 2021
or not; of course, he can report about the user,
lie of the adjoining properties etc; as he may see
on the spot. Be that as it may, since a report is
already been available on record as noted by the
trial court, it is not necessary to depute another
commission at this stage. However, in the course of
trial if issuance of Commission is found necessary
to ascertain further details, if any required, then
it shall be open for the court to issue another
commission notwithstanding the order impugned.
Original petition is disposed of as above.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.211 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AMENDED PLAINT DATED
29.11.2016 IN O.S.NO.824 OF 2016 ON THE
FILE OF MUNSIFF'S COURT, N.PARAVUR.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED
27.01.2017 FILED BY THE DEFENDANTS 1, 2 AND
4 IN O.S.NO.824 OF 2016 ON THE FILE OF
MUNSIFF'S COURT, N.PARAVUR.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED
27.10.2017 IN O.S.NO.824 OF 2016 ON THE
FILE OF MUNSIFF'S COURT, PARAVUR.
EXHIBIT P4 TRUE COPY OF THE ADDITIONAL WRITTEN
STATEMENT FILED BY DEFENDANTS 1, 2 AND 4
DATED 17.11.2020 IN O.S.NO.824 OF 2016 ON
THE FILE OF MUNSIFF'S COURT, N.PARAVUR.
EXHIBIT P5 TRUE COPY OF THE ADDITIONAL WRITTEN
STATEMENT FILED BY DEFENDANT NO.5 DATED
25.11.2020 IN O.S.NO.824 OF 2016 ON THE
FILE OF MUNSIFF'S COURT, N.PARAVUR.
EXHIBIT P6 TRUE COPY OF THE COMMISSION REPORT AND
ROUGH-SKETCH DATED 03.01.2017 IN
I.A.NO.2800 OF 2016 IN O.S.NO.824 OF 2016
ON THE FILE OF MUNSIFF'S COURT, N.PARAVUR.
EXHIBIT P7 TRUE COPY OF THE OBJECTION DATED 27.10.2017
TO THE COMMISSION REPORT IN O.S.NO.824 OF
2016 ON THE FILE OF MUNSIFF'S COURT,
N.PARAVUR.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 18.03.2020 IN
O.P(C)NO.789 OF 2020 ON THE FILE OF THIS
HON'BLE COURT.
OP(C).No.211 OF 2021
EXHIBIT P9 TRUE COPY OF I.A.NO.2 OF 2020 DATED
15.09.2020 IN O.S.NO.824 OF 2016 ON THE
FILE OF THE MUNSIFF'S COURT, N.PARAVUR.
EXHIBIT P10 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
22.09.2020 IN I.A.NO.2 OF 2020 DATED
15.09.2020 IN O.S.NO.824 OF 2016 ON THE
FILE OF THE MUNSIFF'S COURT, N.PARAVUR.
EXHIBIT P11 TRUE COPY OF THE ORDER IN I.A.NO.2 OF 2020
DATED 13.01.2021 IN O.S.NO.824 OF 2016 ON
THE FILE OF THE MUNSIFF'S COURT, N.PARAVUR.
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