Pappachan vs Viswanathan
2022 Latest Caselaw 9558 Ker

OP(C) NO. 1604 OF 2022
                                    1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
 THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                      OP(C) NO. 1604 OF 2022
 AGAINST THE ORDER/JUDGMENT IN OS 2348/2014 OF PRINCIPAL
                     MUNSIFF COURT ,TRIVANDRUM
     IA 7/2022 OF PRINCIPAL MUNSIFF COURT ,TRIVANDRUM
PETITIONER/S:

         PAPPACHAN
         AGED 72 YEARS
         KUZHIVILAKATH PUTHEN VEEDU
         POONKULAM, VELLAYANI P.O.
         THIRUVANANTHAPURAM
         , PIN - 695522

            BY ADV V.S.BABU GIREESAN



RESPONDENT/S:

         VISWANATHAN
         AGED 70 YEARS
         KUZHIVILAKATH PUTHEN VEEDU
         POONKULAM, VELLAYANI P.O.
         THIRUVANANTHAPURAM
         , PIN - 695522


     THIS    OP   (CIVIL)     HAVING    COME   UP    FOR    ADMISSION   ON
25.08.2022,    THE    COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 1604 OF 2022
                             2

                         JUDGMENT

Being aggrieved by the order in I.A.No.7/2022 in

O.S.No.2348/2014 (Ext.P10) of the Court of the

Principal Munsiff, Thiruvananthapuram, the 2nd

defendant in the suit is before this Court. The

respondent is the plaintiff in the suit.

2. The concise case of the petitioner, in the

original petition, is that: he is the 2 nd defendant in the

above suit which is filed by the respondent, for a

decree to declare easement right over the plaint 'A'

schedule property and other consequential reliefs. The

suit is resisted by the petitioner and his daughter, who

is the 1st defendant in the suit, who have filed Ext.P6

written statement. On the application made by the

respondent, an Advocate Commissioner was appointed

and Ext.P8 report is on record. The petitioner has filed

his written objection to Ext.P8 report. The petitioner

has filed Ext.P1 application, to appoint another OP(C) NO. 1604 OF 2022

Advocate Commissioner to report the non-existence of

plaint 'F' schedule pathway. The same has been

resisted by the respondent through Ext.P2 objection.

The court below, by the impugned Ext.P10 order, has

dismissed Ext.P1. Ext.P10 is erroneous and wrong.

Hence, the original petition.

3. Heard; Sri.V.S.Babu Gireesan, the learned

counsel appearing for the petitioner.

4. The point is whether there is any error or

illegality in Ext.P10 order.

5. Undisputedly, the suit is of the year 2014.

Ext.P8 commission report was filed by the Advocate

Commissioner as early as on 08.01.2018. The

petitioner was not aggrieved by Ext.P8 report until the

suit was listed for trial on 06.07.2022. It is only on

18.07.2018, after the lapse of more than four years,

that the petitioner has felt the necessity to file Ext.P9

objection to Ext.P8 report and Ext.P1 application. The OP(C) NO. 1604 OF 2022

same has been objected to by the respondent by filing

Ext.P2 application.

The Court below, after considering the application

and the objection, by the impugned order has

dismissed Ext.P1 application on the ground that the

same is filed with the oblique intention to protract the

determination of the suit. I do not find any error or

illegality in the impugned order and the conclusion

arrived at by the court below warranting interference

by this Court under Article 227 of the Constitution of

India. The original petition fails and is dismissed.

Sd/-

C.S.DIAS, JUDGE rkc/25.08.22 OP(C) NO. 1604 OF 2022

APPENDIX OF OP(C) 1604/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE I.A.NO.7 OF 2022 IN O.S.NO.2348/2014 DATED 18.07.2022 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM

Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFF ON 28.07.2022

Exhibit P3 TRUE COPY OF THE PLAINT IN O.S.NO.2348 OF 2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM

Exhibit P4 TRUE COPY OF THE ORDER DATED 12.09.2013 IN I.A.NO.2363/2013 IN A.S.NO.21/2012 OF THE ADDITIONAL DISTRICT COURT III, THIRUVANANTHAPURAM

Exhibit P5 TRUE COPY OF THE I.A.NO.516/2018 IN O.S.NO.2348/2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM

Exhibit P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 TO 3 IN O.S.NO.2348/2014

Exhibit P7 TRUE COPY OF THE I.A.NO.9844/2016 IN O.S.NO.2348/2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM

Exhibit P8 TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO. 2348/2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM

Exhibit P9 TRUE COPY OF THE OBJECTION TO THE COMMISSION REPORT FILED BY THE DEFENDANTS 1 TO 3 ON 18.07.2022

Exhibit P10 COPY OF THE ORDER DATED 03.08.2022 IN I.A.NO.7 OF 2022 IN O.S. NO.2348 OF 2014 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM