John C. Marshal vs Usha
2022 Latest Caselaw 9269 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                      OP(C) NO. 1470 OF 2022
 AGAINST THE ORDER/JUDGMENT IN IA NO 3 AND 4 OF 2022 IN OS
      1259/2012 OF II ADDITIONAL SUB COURT,TRIVANDRUM
PETITIONER/S:

            JOHN C. MARSHAL
            AGED 42 YEARS
             S/O. CHELLAPAN NADAR, ROSE COTTAGE,
            ANTHIYOORKONAM, MALAYINKEEZHU, THIRUVANANTHAPURAM
            - 695 571.

            BY ADVS.
            GEORGE MATHEW
            SUNIL KUMAR A.G
            PRAVEEN S.
            DIPU JAMES
            MATHEW K.T.
            STEPHY K REGI
            M.D.SASIKUMARAN
            GEORGE K.V.


RESPONDENT/S:

            USHA
            D/O. KAMALAKSHI, CHRISTU BHAVAN,
            PALLIVILA, CHELAPPARA, VILAPPIL VILLAGE,
            THIRUVANANTHAPURAM - 695 573


     THIS     OP   (CIVIL)    HAVING   COME   UP    FOR    ADMISSION   ON
10.08.2022,    THE    COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
                                2
OP(C) No.1470 of 2022


                          C.S DIAS,J.
                     ---------------------------
                 OP(C) No.1470 of 2022
                     -----------------------------
          Dated this the 10th day of August, 2022.

                          JUDGMENT

The original petition is filed to set aside the order in

IA No.3/2022 (Ext P5) and in IA No.4/2022 (Ext P8) in

OS 1259/2012 of the Court of the Additional Subordinate

Judge-II, Thiruvananthapuram.

2. The skeletal facts, relevant for the

determination of the original petition are: the petitioner

is the defendant in the above suit, which is filed by the

respondent, for a decree of specific performance with

alternative relief for return of advance sale consideration.

Ext P1 plaint was instituted in the year 2012. The

petitioner has filed Ext P2 written statement to Ext P1

plaint also in the same year. During the cross-

examination of the respondent as PW1, she made

contradictory statements with reference to the lie and

location of the plaint schedule property. PW1's evidence

OP(C) No.1470 of 2022

reveals that there is no agreement executed between the

parties. To prove the above aspect, the petitioner filed

Ext P3 application, to depute an Advocate Commissioner

to ascertain the matter mentioned in the application. The

application was objected to by the respondent by filing

Ext P4 objection. The court below, by Ext P5 order, has

erroneously dismissed Ext P3 application. So, the

petitioner filed Ext P6 application to review Ext P5 order

which has also been objected to by the respondent by

filing Ext P7 counter affidavit. The court below, again, by

Ext P8 order, repeated the earlier mistake and dismissed

Ext P6. Exts P5 and P8 orders are erroneous and wrong.

Hence, the original petition.

3. Heard; Sri.George Mathew, the learned counsel

appearing for the petitioner.

4. The point is whether there is any error or

illegality in Exts P5 and P8 orders passed by the court

below.

5. Admittedly, the suit is of the year 2012, which is

filed for a decree of specific performance with alternative

OP(C) No.1470 of 2022

relief for return of advance sale consideration. It is the

petitioner's case that during the cross-examination of the

respondent, she has made contradictory statements

necessitating the filing of Ext P3 application. The court

below, after taking note of the fact that the suit is one for

specific performance with an alternative prayer for return

of advance sale consideration, has concluded that there

is no necessity to ascertain the lie and location of the

plaint schedule property.

6. An analysis of Exts P3 and P6 applications shows

the petitioner wants to prove that the property has

rubber plantations, but PW1 had deposed that the

property is a barren land.

7. It is to be remembered that the agreement was

executed 12 years back and the suit is also of the same

year. Therefore, the change in nature of the property

cannot be ruled out. Moreover, since the suit is for the

above-mentioned reliefs, I do not find any necessity to

depute an Advocate Commissioner to ascertain the matter

sought for in Ext P3 application, as rightly held by the

OP(C) No.1470 of 2022

court below. There is no error or illegality in Exts P5 and

P8 orders passed by the court below warranting

interference by this Court in exercise of its supervisory

powers under Article 227 of the Constitution of India.

The original petition fails and is dismissed.

sd/-

sks/10.8.2022                         C.S.DIAS, JUDGE

OP(C) No.1470 of 2022


                    APPENDIX OF OP(C) 1470/2022

PETITIONER EXHIBITS
Exhibit P1          TRUE COPY OF PLAINT DTD. 12.10.2012 IN
                    O.S. NO.1259 OF 2012 OF THE SECOND

ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM Exhibit P2 TRUE COPY OF WRITTEN STATEMENT DTD.

26.02.2021 FILED BY PETITIONER IN EXT.P1 Exhibit P3 TRUE COPY OF I.A NO.3 OF 2022 DTD.

10.02.2022 IN EXT. P1 Exhibit P4 TRUE COPY OF OBJECTION DTD. 15.02.2022 FILED BY RESPONDENT IN EXT.P3 Exhibit P5 TRUE COPY OF ORDER DTD. 25.03.2022 IN I.A.NO.3 OF 2022 IN O.S. NO.1259 OF 2012 OF THE SECOND ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM Exhibit P6 . TRUE COPY OF I.A. NO. 4 OF 2022 IN I.A.NO.3 OF 2022 IN O.S. NO.1259 OF 2012 DTD. 21.06.2022 OF THE II ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM Exhibit P7 TRUE COPY OF OBJECTION DTD. NIL OF JUNE 2022 IN EXT. P6 Exhibit P8 TRUE COPY OF ORDER DTD. 12.07.2022 IN I.A. NO. 4 OF 2022 IN I.A.NO.3 OF 2022 IN O.S. NO.1259 OF 2012 OF THE II ADDITIONAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM