Kerala High Court
Johny vs Thomas @ Thomachan on 30 September, 2021
OP(C).1591/18 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
OP(C) NO. 1591 OF 2018
AGAINST THE ORDER/JUDGMENT IN OS 83/2009 OF MUNSIFF
COURT,ALUVA, ERNAKULAM
PETITIONER/S:
JOHNY
S/O.PAILY, THETTAYIL HOUSE, ANGAMALY KARA & VILLAGE,
ALUVA TALUK.
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.ABY J AUGUSTINE
SRI.K.M.MOHAMMED YUSUFF M-1323
RESPONDENT/S:
1 THOMAS @ THOMACHAN
S/O.OUSEPH, PUTHENPURACKAL HOUSE, ANGAMALY KARA &
VILLAGE, ALUVA TALUK, PIN-683572.
2 GEORGE
S/O.OUSEPH, ELAVUMKUDY, ANGAMALY KARA & VILLAGE,
ALUVA TALUK, PIN-683572.
3 ELIAMMA
W/O.GEORGE, ELAVUMKUDY, ANGAMALY KARA &
VILLAGE,ALUVA TALUK, PIN-683572.
4 PAULOSE
S/O.OUSEPH, ELAVUMKUDY, ANGAMALY KARA &
VILLAGE,ALUVA TALUK, PIN-683572.
5 DEVASSIKUTTY
S/O.OUSEPH, ELAVUMKUDY, ANGAMALY KARA &
VILLAGE,ALUVA TALUK, PIN-683572.
OP(C).1591/18 2
6 RENUKA
W/O.SUDHAKARAN, THENNURUVEETTIL, PARAPPURAM KARA,
KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK, PIN-683575.
BY ADVS.
SRI.M.MOHAMED NAVAZ
SRI.P.SANTHOSH KUMAR (TR)
SRI.B.PRASANTH
SRI.T.P.SAJAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).1591/18 3
V.G.ARUN, J.
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O.P(C).No.1591 of 2018
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Dated this the 30th day of September, 2021
JUDGMENT
The petitioner is the 2nd defendant in O.S.No. 83 of 2009 on the
files of the Munsiff's Court, Aluva. The suit is filed seeking a decree
of permanent prohibitory injunction, restraining the defendants from
encroaching upon or reducing the width of plaint E schedule way,
which is the only access to the properties of the plaintiffs, is lying in
between the properties of the defendants. At the instance of the
plaintiffs, an Advocate Commissioner was appointed to conduct local
inspection and to report about the lie and nature of E schedule way.
Contrary to the plaintiffs' expectation, the Commission report did not
support their case. Thereupon, the 1st defendant in the suit/6th
respondent herein filed an application for remitting the Advocate
Commissioner's report and to call for a fresh report. The petitioner
was not made a party to that application, nor served with a copy of
the application. The trial court allowed the application and appointed
an Advocate Commissioner. On coming to know about the order, the
petitioner filed Exhibit P11 application and the order was recalled.
The petitioner also filed objection to the Commission report and the
court below remitted the Commissioner's report to the very same
Advocate Commissioner. At that juncture, respondents 1 to 5 filed
Exhibit P15 application requiring the Advocate Commissioner to
measure the property on the basis of the prior title deed. To the said
application also, the petitioner filed detailed objections. The court
allowed Exhibit P15 application by Exhibit P17 order. Hence, this
original petition.
2. Learned counsel for the petitioner submitted that O.S.No.83
of 2009 is barred by res judicata. Referring to Exhibits P1 judgment,
Exhibit P2 decree and Exhibit P3 Advocate Commissioner report in
an earlier suit (O.S.No.89 of 2006) filed by the petitioner, it is
contended that the issue with respect to the boundaries of the
property of the petitioner has become final and the instant suit is an
abuse of process of court. It is pointed out that Identical contentions
with respect to E schedule way was urged in the earlier suit and the
defendants therein had raised a counter claim. Rejecting those
contentions, the suit was decreed and the counter claim dismissed.
Thereupon, defendants preferred appeals against the judgment and
decree. During the pendency of the appeals, the instant suit was
filed and the appeals withdrawn. The 1 st defendant in the present
suit is hand-in-glove with the respondents, as would be evident from
the fact that Exhibit P10 application was filed by the 1 st defendant
without making the petitioner a party. The court below having
recalled the order passed in Exhibit P10, appointing an Advocate
Commissioner, committed gross illegality in appointing an Advocate
Commissioner to measure the properties, at the instance of the
plaintiffs. Moreover, the impugned order is liable to be set aside,
being bad for non-application of mind and absence of reasons.
3. Learned counsel for the respondents submitted that the
impugned order was passed after taking into consideration all
relevant aspects, including the objections raised by the petitioner.
4. A perusal of Exhibit P17 order shows that, except a bald
statement of the learned Munsiff being satisfied that it is necessary
to measure the property based on the document mentioned in the
petition for determination of the real dispute, the reasons which
prompted the court to arrive at such satisfaction are not stated. The
order is hence liable to be set aside for complete absence of
reasons. As has been repeatedly held by the Apex Court, the
hallmark of a judgment/order and exercise of judicial power is
disclosure of the reasons for the decision. Giving reasons is one of
the fundamentals of justice delivery. It is the reasons that make
known whether there had been proper and due application of mind
to the issue before the court. Needless to say that judicial power has
to be exercised judiciously and the discretion vested with the court
does not constitute licence to exercise it at the whims and fancies of
the officer.
In the result, the original petition is allowed. Exhibit P17 order
is set aside. The trial court shall reconsider I.A.No.444 of 2018 in
O.S.No.83 of 2009 and pass a reasoned order thereon, after affording
an opportunity of hearing to the parties. The suit being of the year,
2009, the learned Munsiff shall take earnest efforts to dispose of the
suit as expeditiously as possible and at any rate, within six months
of receipt of a copy of this judgment.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 1591/2018
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF JUDGMENT IN O.S.NO.189 OF
2006 DATED 20.2.2009, MUNSIFF'S COURT,
ALUVA.
EXHIBIT P2 A TRUE COPY OF THE DECREE IN O.S.NO.189 OF
2006 DATED 20.2.2009, MUNSIFF'S COURT,
ALUVA.
EXHIBIT P3 A TRUE COPY OF THE COMMISSIONER'S REPORT &
SKETCH DATED 6.3.2008.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN A.S.NO.67
OF 2009 DATED 12.8.2010, ADDL. DISTRICT
COURT, N.PARAVUR.
EXHIBIT P5 A TRUE COPY OF THE PLAINT IN O.S.NO.83 OF
2009 DATED 28.2.2009, MUNSIFF'S COURT,
ALUVA.
EXHIBIT P6 A TRUE COPY OF THE WRITTEN STATEMENT OF
THE PETITIONER DATED 28.2.2009.
EXHIBIT P7 A TRUE COPY OF THE INTERIM REPORT DATED
13.8.2012 BY ADVOCATE COMMISSIONER BOBY
VARGHESE.
EXHIBIT P8 A TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER DATED 3.9.2012.
EXHIBIT P9 A TRUE COPY OF THE REPORT AND THE SURVEY
SKETCH DATED 15.3.2013.
EXHIBIT P10 A TRUE COPY OF THE APPLICATION AND THE
ACCOMPANYING AFFIDAVIT FILED BY THE 6TH
RESPONDENT DATED 23.9.2013.
EXHIBIT P11 A TRUE COPY OF THE AFFIDAVIT AND THE
APPLICATION FILED BY THE PETITIONER
SEEKING TO SET ASIDE THE ORDER IN EXT.P10
DATED 21.7.2014.
EXHIBIT P12 A TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER DATED 25.9.2014.
EXHIBIT P13 A TRUE COPY OF THE ADDITIONAL OBJECTION
DATED 17.3.2015 FILED BY THE PETITIONER.
EXHIBIT P14 A TRUE COPY OF THE INTERIM REPORT DATED
2.6.2018 FILED BY THE ADVOCATE
COMMISSIONER.
EXHIBIT P15 A TRUE COPY OF THE APPLICATION FILED BY
RESPONDENTS 1 TO 5 AS I.A.NO.444 OF 2018
ON 28.2.2018.
EXHIBIT P16 A TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER DATED 12.5.2018.
EXHIBIT P17 A TRUE COPY OF THE ORDER DATED 8.6.2018 IN
I.A.NO.444 OF 2018 IN O.S.NO.83 OF 2009.
