Ramchandran Pillai vs K.M.Surendran Pillai
2021 Latest Caselaw 7061 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

                         OP(C).No.1722 OF 2020

  AGAINST THE ORDER/JUDGMENT IN OS 170/2005 DATED 09-11-2020 OF
                    MUNSIFF COURT,KAYAMKULAM


PETITIONER/PETITIONER:

             RAMCHANDRAN PILLAI
             AGED 67 YEARS
             S/O SANKARA KURUP,
             MARUTHAVANA ATHIRA VEEDU,
             KATTANAM VILLAGE,
             KATTANAM PALLICKAL P.O.
             ALAPPUZHA-690 503.

             BY ADVS.
             SRI.P.B.SAHASRANAMAN
             SRI.T.S.HARIKUMAR

RESPONDENTS/RESPONDENTS:

      1      K.M.SURENDRAN PILLAI
             AGED 72 YEARS
             S/O MADHAVAN PILLAI,
             KEEZHNELLOOR VEETTIL,
             KATTANAM VILLAGE,
             KATTANAM PALLICKAL P.O.
             ALAPPUZHA-690 503.

      2      M.S GOPALAKRISHNA PILLAI,
             AGED 71 YEARS
             S/O SANKARA KURUP,
             MARUTHAVANA VEEDU,
             KATTANAM VILLAGE,
             KATTANAM PALLICKAL P.O.
             ALAPPUZHA-690 503.

      3      GOVERNMENT OF KERALA,
             REPRESENTED BY THE DISTRICT COLLECTOR,
             ALAPPUZHA,
             CIVIL STATION,
             ALAPPUZHA-688 001.

      4      THE TAHASILDAR,
             TALUK OFFICE, MAVELIKARA-690 101.
 OP(C).No.1722 OF 2020

                                      2




       5      THE VILLAGE OFFICER,
              KATTANAM VILLAGE OFFICE, ALAPPUZHA-690 503.

              R1   BY   ADV.   SHRI.SANTHOSH P.PODUVAL
              R1   BY   ADV.   SMT.R.RAJITHA
              R1   BY   ADV.   SRI.R.N.SANDEEP
              R1   BY   ADV.   SMT.CHITHRA.S.BABU



              SRI. M.I. JOHNSON SR.GOVERNMENT PLEADER.

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.1722 OF 2020

                                          3




                                   JUDGMENT

Dated this the 1st day of March 2021

This O.P was filed seeking to set aside Ext.P10 order passed by the

learned Munsiff, Kayamkulam in I.A No.7/2020 in O.S.No.170/2005.

2. Heard the learned counsel appearing for the petitioner as well as

the respondents .

3. The suit was filed by the petitioner for fixation of the northern

and western boundaries of plaint A-Scheduled property. The suit was

originally decreed in favour of the first respondent herein. It was

challenged in appeal which was remanded and the order of remand was

confirmed by this Court in FAO(RO)No.182/2016. It is submitted that

subsequent to the remand, the suit was amended and a counter claim was

made by the defendant in the suit. When things went on, a commission was

issued for survey and measurement of the suit property and a report was

submitted. Being aggrieved by the report submitted by the Commissioner,

the first defendant filed I.A.No.7/2020 seeking an order setting aside the

report and plan and calling for a fresh report of matters set forth in the

application.

4. After hearing the parties, the Court below dismissed

I.A.No.7/2020. The dismissal is challenged by the aggrieved first defendant

in this O.P.

OP(C).No.1722 OF 2020

5. It could be seen, from this order that the Court below did not

bestow its mind to the merits of the contentions raised by the parties. On

the other hand, the court below was inspired by the direction issued by this

Court to dispose of the suit within a stipulated period of time. Obsessed by

the urgency, the Court below dismissed the application without going into

the merits of the contentions raised by the parties. Since a meritorious order

is required to be passed in this matter by the court below, it does not

appear to be fair on the part of this Court to express its view on the merits

of the contentions raised before me. The impugned order cannot sustain

under law and the matter has to go back to the court below over again for

fresh decision in accordance with law.

In the result, the O.P is allowed setting aside the impugned

Ext.P10 order. The court below is directed to decide to take up I.A.No.

7/2020 and decide this matter within a period of one month in accordance

with law after hearing the parties, on receipt of copy of this judgment. It is

made clear that the trial of the suit should not proceed before the court

below deciding I.A.No.7/2020 on merits.

Sd/-

T.V.ANILKUMAR JUDGE SMF OP(C).No.1722 OF 2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE AMENDED PLAINT IN OS NO 170 OF 2005 OF THE MUNSIFF COURT, KAYAMKULAM EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT TO THE AMENDED PLAINT ALONG WITH COUNTER CLAIM IN OS NO 170 OF 2005 OF THE MUNSIFF COURT, KAYAMKULAM EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE PLAINTIFF FOR THE APPOINTMENT OF THE ADVOCATE COMMISSIONER DATED 18.2.2019 EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY THE 1ST DEFENDANT FOR THE APPOINTMENT OF THE ADVOCATE COMMISSIONER DATED 11.2.2019 EXHIBIT P5 THE TRUE PHOTOSTAT COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 19.10.2020 EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER DATED NIL EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN DATED 6.11.2020 TO COMMISSION REPORTS EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE IA NO 7 OF 2020 FILED BY THE PETITIONER HEREIN DATED 6.11.2020 EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE IA NO 8 OF 2020 FILE BY THE PETITIONER HEREIN, DATED 9.11.2020 EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE ORDER IN IA NO 7 OF 2020, DATED 9.11.2020 EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE ORDER IN IA NO 8 OF 2020 DATED 9.11.2020 //TRUE COPY//

PA TO JUDGE