A.D.Gopala Shenoy vs T.J Mathai
2021 Latest Caselaw 18881 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                    THE HONOURABLE MR.JUSTICE V.G.ARUN
         FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                          OP(C) NO. 1507 OF 2021
   AGAINST THE ORDER/JUDGMENT IN OS 432/2018 OF III ADDITIONAL MUNSIFF
                             COURT, ERNAKULAM
PETITIONER/PLAINTIFF:

     1       A.D.GOPALA SHENOY
             AGED 71 YEARS
             S/O. DAMODARA SHENOY, RESIDING AT PADMALAYAM, BANERJI ROAD,
             KOCHI - 682018,
             NOW RESIDING AT SHENOY NIVAS, LAKSHMI NADA,
             MAIN ROAD, KOLLAM - 692013.
             BY ADVS.
             S.VINOD BHAT
             ANAGHA LAKSHMY RAMAN
             GREESHMA CHANDRIKA.R


RESPONDENTS/DEFENDANTS:

     1       T.J MATHAI
             AGED 83 YEARS
             S/O. LATE JOSEPH, CONTRACTOR, THEKKANATH HOUSE, PERUMANOOR
             DESOM, ERNAKULAM SOUTH P.O, PIN - 682016

     2       JOE MATHEW,
             AGED 40 YEARS
             S/O. T.J. MATHAI, THEKKANATH HOUSE, PERUMANOOR DESOM,
             ERNAKULAM SOUTH P.O, PIN - 682016

     3       GOMATHY SUKUMARAN,
             AGED 68 YEARS
             W/O. LATE SUKUMARAN, KALLINGAL THITTAYIL, NEAR K.S.R.T.C,
             BUS STAND, ERNAKULAM COLLEGE P.O,
             KOCHI - 682035.

             BY ADV. K R VINOD

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1507 OF 2021
                                         2




                                  JUDGMENT

Dated this the 10th day of September, 2021

The plaintiff in O.S.No.432/2018 on the files of

the IIIrd Additional Munsiff Court, Ernakulam has filed

this Original Petition aggrieved by two orders passed

by the jurisdictional Munsiff on different interlocutory

applications. The first application, I.A.13/2021 was

filed by the petitioner seeking to remit the

Commission report, obtained at his instance. The

second order was passed on I.A.14/2021, wherein the

petitioner had required the defendant to furnish the

name and address of the legal heirs of the deceased

first defendant.

2. In the application seeking remittance of the

Commission report, the petitioner had highlighted

the failure of the Commissioner to note the existence

of Puramboke land on the Northern and Eastern sides

of the plaint 'C' schedule property. The bone of

contention is the plaintiff's claim that the said stretch

of land is being used by him for ingress and egress to OP(C) NO. 1507 OF 2021

the road on the North and East. Yet another

grievance is the alleged failure of the Commissioner

to note the existence of a car shed and a car parked

in plaint 'A' schedule property.

3. Learned Counsel for the petitioner contended

that the mistake committed by the Commissioner

stands aggravated by the observations in the

impugned orders. Specific reference is made to the

observations in para (8) & (9) of Ext.P3, reiterated in

the last paragraph of Ext.P7 order. The relevant

portion is extracted hereunder.

Ext.P3- 8. It is pertinent to note that the

dispute in the above suit is with regard the plaint C

schedule and its nature. The contention of the

petitioner is that northern side as well as the

eastern side of the plaint C schedule property is

puramboke land and the advocate commissioner

has failed to report the aforesaid aspect. But the

advocate commissioner has categorically reported

that plaint C schedule is not a puramboke land and

belongs to the 2nd respondent.

Ext.P7- In the Ext.C1 report, the advocate

commissioner also reported that the plaint C OP(C) NO. 1507 OF 2021

schedule property is a private property in the

ownership of the 2nd respondent by gift deed

No.2800/2004 of SRO Ernakulam.

It is also contended that the trial court had

focused only on the first aspect, viz. the plaint 'C'

scheduled property and hence, failed to apply its

mind to the other objections raised in the application.

4. Sri. K R Vinod, Learned Counsel for the

respondent, contended that the only intention behind

filing the application for remitting the Advocate

Commissioner's report is to protract the proceedings.

Referring to the various dates on which the case was

posted and direction for time bound disposal of the

suit issued on an earlier occasion. It is contended

that the application lacks bona fides. According to

the learned Counsel, all aspects pointed out by the

plaintiff has been reported and there is no cause for

complaint.

5. Having heard the learned Counsel and

having perused the impugned orders, I find no reason

to interfere with the findings therein. At the same OP(C) NO. 1507 OF 2021

time, I find substantial force in the contention of the

learned Counsel for the petitioner that the

observations at para (8) & (9) in Ext.P3 and the last

paragraph in Ext.P7 amounts to prejudging of the

issues by the trial court. As far as the other

objections are concerned, it is for the petitioner to

take necessary steps during the course of trial.

6. In the application requiring the defendant to

provide details of the legal heirs of the deceased first

defendant, the court has found that the right of the

first defendant over the disputed property had been

assigned to the second defendant long back and

therefore the right to sue does not survive on any of

the legal heirs other than the second defendant.

According to learned Counsel for the petitioner,

rather than making such observations in the

plaintiff's application, the trial court is bound to

record the factum of death of the first defendant.

I find the submission to be well founded. The trial

court shall do the needful in this regard.

In the result, the Original Petition is disposed of, OP(C) NO. 1507 OF 2021

without interfering with the findings in the impugned

order, but directing the court below to decide the suit

uninfluenced by the observations in para (8) of

Ext.P3 and last paragraph of Ext.P7.

Sd/-

V.G.ARUN

JUDGE NB/10-9 OP(C) NO. 1507 OF 2021

APPENDIX OF OPC 1507/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 COPY OF PETITION I.A.13/2021 IN O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P2 COPY OF COUNTER AFFIDAVIT IN I.A.13/2021 IN O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P3 COPY OF ORDER DATED 03-09-2021 IN I.A.13/2021 IN O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P4 COPY OF COMMISSION REPORT IN I.A.1/2020 in O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P5 COPY OF PETITION I.A.14/2021 IN O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P6 COPY OF COUNTER AFFIDAVIT IN I.A.14/2021 IN O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P7 COPY OF ORDER DATED 03-09-2021 IN I.A.14/2021 IN O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P8 COPY OF PLAINT-O.S.432/2018 OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

RESPONDENT'S EXHIBITS: NIL

True Copy P.A to Judge