Nirmala vs Biju
2021 Latest Caselaw 23335 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
   THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                        OP(C) NO. 925 OF 2021
  AGAINST THE ORDER/JUDGMENT IN OS 337/2020 OF I ADDITIONAL MUNSIFF
                        COURT, NEYYATTINKARA
PETITIONER/S/PLAINTIFF IN THE SUIT:

           NIRMALA,
           AGED 54 YEARS
           D/O. BHAI, MAVUVILA ROADARIKATHU VEEDU, MULLILAVUVILA,
           KARIKKAMANCODE DESOM, ANAVOOR VILLAGE.
           BY ADV S.KRISHNA


RESPONDENT/S/DEFENDANTS 1 TO 3:

     1     BIJU,
           AGED 40 YEARS
           S/O. SOMAN, MAVUVILA ROADARIKATHU VEEDU, MULLILAVUVILA,
           KARIKKAMANCODE DESOM, ANAVOOR VILLAGE-695124.
     2     JANAT,
           AGED 60 YEARS, MAVUVILA ROADARIKATHU VEEDU,
           MULLILAVUVILA, KARIKKAMANCODE DESOM, ANAVOOR VILLAGE-
           695124.
     3     BEENA,
           AGED 42 YEARS
           D/O. JANET, MAVUVILA ROADARIKATHU VEEDU, MULLILAVUVILA,
           KARIKKAMANCODE DESOM, ANAVOOR VILLAGE-695124.
           BY ADV R.GOPAN


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 925 OF 2021
                                2

                         JUDGMENT

Dated this the 25th day of November, 2021

By Ext.P3 order, the trial court had directed the Advocate

Commissioner to ascertain the existence of any grave in plaint

'F' schedule and if it is in existence, its nature and physical

marks etc. For ascertaining the existence or otherwise of a

grave, the Commissioner had to dig up the property. Which

such exercise was going on, respondents obstructed the

Commissioner and forced her to retreat. Commissioner filed a

report, giving a graphic description of what transpired during

her inspection and her inability to execute the warrant of

commission. Thereupon, petitioner filed an application,

requiring the court to direct police aid to the Commissioner

during inspection. That application stands dismissed by

Ext.P5 order. Hence, the original petition.

2. The reason for dismissal, as discernible from Ext.P4, OP(C) NO. 925 OF 2021

is that the plaintiff had not made any prayer to ascertain the

grave in plaint 'F' schedule property by removing the soil or

digging the property

3. Learned Counsel for the petitioner submits that the

property in which the grave is situated, is now being cultivated

by the respondents. As such, the only manner in which the

existence of a grave can be ascertained, is by excavating the

property. Learned Counsel for the respondents submitted that

the excavation of the property is hurting the sentiments of the

respondents and hence, the Commissioner was asked to refrain

from doing such acts. It is also contended that there is no

specific direction to dig up the property for ascertaining the

existence of the grave.

4. Having heard the learned Counsel for the petitioner

and having perused the impugned order refusing police

protection, I find that the trial court was not justified in

refusing police protection, after having directed the OP(C) NO. 925 OF 2021

Commissioner to ascertain the existence of a grave. It is

pertinent to note that Order 26 Rule 9 empowers the court to

appoint Commissioners for the purpose of elucidating the

matters in dispute. The matter in dispute in the case at hand,

is the existence or otherwise of a grave in 'F' schedule. It is

for elucidating this matter that the Advocate Commissioner

was appointed with specific direction to ascertain the existence

of the grave. Hence, the Commissioner is bound to execute the

order by resorting to the method which the Commissioner

finds most conducive and neither of the parties have any right

to obstruct the Commissioner from executing the warrant. The

Commissioner having been once obstructed, Court is bound to

ensure that the Commissioner is provided sufficient police

protection. If the court appointed Commissioners are forced to

return the warrant without execution, on being obstructed by

the parties, that will tell upon the majesty of courts and impact

the administration of justice.

OP(C) NO. 925 OF 2021

For the aforementioned reasons, the trial court is directed

to issue necessary instructions to the Station House Officer of

the jurisdictional police station to afford protection to the

Advocate Commissioner appointed in O.S.No.337 of 2020

during local inspection. The respondent having attempted to

obstruct the Commissioner with the help of his minor

daughters and the Commissioner being a lady, Station House

Officer shall ensure the presence of women police constables

during the inspection.

Sd/-

V.G.ARUN JUDGE RK OP(C) NO. 925 OF 2021

APPENDIX OF OP(C) 925/2021

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS.337 OF 2020 ON THE FILES OF MUNSIFF COURT, NEYYATTINKARA.

EXHIBIT P2 A TRUE COPY OF THE IA. 3 OF 2020 IN OS.337 OF 2020 ON THE FILES OF MUNSIFF COURT, NEYYATTINKARA DATED 25.5.2020.

EXHIBIT P3 A TRUE COPY OF THE COMMON ORDER DATED 30.6.2020 IN IA.NO.1 OF 2020 AND IA.NO.3 OF 2020 IN OS.337 OF 2020 ON THE FILES OF ADDL.MUNSIFF COURT, NEYYATTINKARA.

EXHIBIT P4 A TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT DATED 18.11.2020.

EXHIBIT P5 CERTIFIED COPY OF THE ORDER DATED 15.3.2021 IN IA.11 OF 2020 IN OS.337 OF 2020 ON THE FILES OF ADDL. MUNSIFF COURT, NEYYATTINKARA.