Raju vs Krishnankutty
2021 Latest Caselaw 898 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                          OP(C).No.2923 OF 2018

  AGAINST THE ORDER/JUDGMENT IN AS 146/2012 DATED 11-10-2018 OF
             ADDITIONAL DISTRICT COURT-I,MAVELIKKARA


PETITIONER/PETITIONER/APPELLANT:

             RAJU
             AGED 47 YEARS
             S/O JANARDHARAN,
             KUNNUMANGAL HOUSE,
             EVOOR SOUTH MURI,
             PATHIYOOR VILLAGE
             ALAPPUHA DIST.

             BY ADVS.
             SRI.B.RENJITHKUMAR
             SHAFEEK RAHMAN. S

COUNTER PETITIONER/RESPONDENTS/RESPONDENTS:

      1      KRISHNANKUTTY
             AGED 62 YEARS
             S/O MADHAVAN, SMITHA MANDIRAM,
             EVOOR SOUTH MURI,
             PATHIYOOR VILLAGE - 621002,
             ALAPPUHA DISTRICT

      2      OMANA
             AGED 55 YEARS,
             W/O KRISHNANKUTTY,
             SMITHA MANDIRAM, EVOOR SOUTH MURI,
             PATHIYOOR VILLAGE,ALAPPUZHA DISTRICT,
             PIN- 621002

             R1   BY   ADV.   GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
             R1   BY   ADV.   SRI.A.R.DILEEP
             R1   BY   ADV.   SRI.RAJAN G. GEORGE
             R1   BY   ADV.   SRI.KESHAVRAJ NAIR
             R1   BY   ADV.   SRI.P.J.JOE PAUL

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.2923 OF 2018           2




                            JUDGMENT

Dated this the 11th day of January 2021

Ext. P11 order dated 11-10-2018 passed by the

Additional District Judge -I, Mavelikkara, is challenged in this

O.P. (C) invoking article 227 of the Constitution of India.

2. The petitioner filed I.A. No. 440/2017 in A.S. No.

146/2012 for issue of commission for identifying the pathway

which is the subject matter in the suit. The application was

dismissed, when the respondents who are the defendants in the

suit took strong exception. The suit itself filed by the petitioner

was dismissed by the court below, presumably on the ground that

the identity of the pathway in question was not established by

taking out a commission. In the appeal filed by the petitioner, he

wanted to show that the path way under dispute existed and

sought to identify it by taking out a commission. But it was

dismissed by Ext.P11 order.

3. I do not intend to examine the merits of the order

passed by the appellate court dismissing the application for issue

of commission. I do not however find any legal ground to interfere

with the order, in as much as the petitioner failed to satisfy the

conditions laid down by order 41 Rule 27 of the C.P.C. for reception

of additional evidence in appeal.

4. After hearing the learned Counsel appearing on

both sides, I am of the view that the appellate court shall be

directed to dispose of the appeal itself. After hearing the parties it

will be open to the appellate court while disposing of the appeal, to

consider whether the petitioner herein would be entitled to an

opportunity to substantiate the case in the suit before the court

below. The impugned order shall not stand in the way of the

appellant pleading for an opportunity to substantiate his contention

as to existence of pathway before the trial court.

5. The learned Counsel for the appellant brought to

my notice that the petitioner already filed an amendment

application which is also pending for consideration in appeal.

6. The learned Counsel for the respondents

submitted that dilatory tactics has been adopted by the appellant

all through out and any remand of this matter for mere asking will

only lead to miscarriage of justice. I am not expressing my views

on the merits of the case. It is enough if appellate court is directed

to consider and the dispose of the appeal in accordance with the

law. It goes without saying that the amendment application must

also be taken up and necessarily disposed of.

In the result, this O.P. is disposed of directing the

learned Additional District Judge-I, Mavelikkara, to dispose of A.S.

No. 146/2012 within a period of one month immediately on receipt

of certified copy of this order in the light of the directions

aforesaid.

Sd/-

T.V.ANILKUMAR JUDGE SMF/11.01

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.

364/2010 IN THE FILE OF MUNSIFF COURT, KAYAMKULAM.

EXHIBIT P2 TRUE COPY OF THE SALE DEED DATED 28-05-

EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 30-11-

2010 IN THE FILE OF MUNSIFF COURT, KAYAMKULAM

EXHIBIT P5 TRUE COPY OF THE REPORT AND MAHAZAR DATED 1-1-2011 FILED BY THE ADVOCATE COMMISSIONER

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 13-08-

2012 IN OS 364/2010 IN THE FILE OF MUNSIFF COURT, KAYAMKULAM

EXHIBIT P7 TRUE COPY OF THE AMENDMENT PETITION AS IA NO. 55/2018 IN AS 146/2012 FOR AMENDING THE PLAINT

EXHIBIT P8 TRUE COPY OF THE OBJECTIONS TO THE AMENDMENT APPLICATION

EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 10-

07-2017 FILED BY THE PETITIONER

EXHIBIT P10 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 11-10-2018 IN IA 440/2017 IN AS NO. 146/2012

//TRUE COPY// PA TO JUDGE