Kerala High Court
Peringadakkad Muhammed vs Ittiyammadathil Santhosh Kumar on 22 December, 2022
OP(C) NO. 2565 OF 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
OP(C) NO. 2565 OF 2022
OS 576/2016 OF PRINCIPAL MUNSIFF COURT ,KOZHIKODE-II
PETITIONER/DEFENDANT:
PERINGADAKKAD MUHAMMED
AGED 57 YEARS, S/O.ALI,
PERINGADAKKAD HOUSE, NADUVATTOM AMSOM-DESOM, NORTH
BEYPORE, KOZHIKODE TALUK., PIN - 673015
BY ADVS.
ROY THOMAS (MUVATTUPUZHA)
K.K.SUBEESH
RESPONDENT/PLAINTIFF:
ITTIYAMMADATHIL SANTHOSH KUMAR
AGED 58 YEARS, S/O.RAGHAVAN,
DARSANA, NADUVATTOM AMSOM-DESOM, NORTH BEYPORE
KOZHIKODE TALUK., PIN - 673015
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 2565 OF 2022 2
JUDGMENT
Aggrieved and dissatisfied with Exts.P8 and P11
orders passed in I.A.No.1/2021 in I.A.No.4532/2019 in
O.S.No.576/2016 of the Court of the Additional Munsiff-II,
Kozhikode, the defendant has filed the original petition.
The respondent is the plaintiff.
2. The relevant facts leading to Exts.P8 and P11
orders are:- the respondent has filed the suit for a decree
of mandatory injunction against the petitioner. The
petitioner has resisted the suit through Ext.P2 written
statement. The respondent had filed I.A.No.4532/2019
(Ext.P3) to appoint an Advocate Commissioner, to conduct
a local inspection with the assistance of an Engineer. Even
though the petitioner opposed Ext.P3 application through
Ext.P4 counter statement, the court below allowed Ext.P3
application. The Advocate Commissioner has filed Ext.P5
report and rough sketch. Ext.P5 is erroneous and
inaccurate. Hence, the petitioner filed I.A.No.1/2021
(Ext.P6) to remit the commission report. The same was
opposed by the respondent through Ext.P7 counter
statement. The court below by the impugned Ext.P8 order,
dismissed Ext.P6 application. Again, the petitioner filed
I.A.No.1/2022 (Ext.P9) to measure the property, based on
the title deed, for the effective determination of the suit.
The said application was also opposed by the respondent
through Ext.P10 objection. The court below, by the
impugned Ext.P11 order, dismissed Ext.P9. Exts.P8 and
P11 are patently wrong and unsustainable in law. Hence,
the original petition.
3. Heard; Sri. Roy Thomas, the learned counsel
appearing for the petitioner.
4. The question is, whether Exts.P8 and P11 orders
warrant interference by this Court under Article 227 of the
Constitution of India.
5. The suit is filed by the respondent, inter-alia-, for
a decree of mandatory injunction. The suit is resisted by
the respondent through Ext.P2 written statement. At the
instance of the respondent, Ext.P5 report and plan is on
record. The petitioner found the report and plan to be
incorrect and inaccurate. Hence, the petitioner filed
Ext.P7 objection to the report. The court below, by the
impugned Ext.P8 order, held that the question of remitting
back the commission report can be considered after the
Advocate Commissioner and the Engineer are examined
during trial. Thereafter, the petitioner again filed Ext.P9
for the purpose of measuring out the plaint schedule
property on the basis of a title deed. The said application
was also dismissed by the court below through Ext.P11
order, again reiterating that the said matter can be
considered after the examination of the Advocate
Commissioner and the Engineer during the trial.
6. In the light of the observation made by the court
below in Exts.P8 and P11 orders, that the question of
remitting the reports can be considered after the
examination of the Advocate Commissioner and the
Engineer, I am of the definite view that the right of the
petitioner stands protected and the orders do not prejudice
the petitioner.
I do not find any error in Exts.P8 and P11 warranting
interference by this Court under Article 227 of the
Constitution of India. Needless to mention, the court
below shall, after the Advocate Commissioner and the
Engineer are examined, consider and decide whether
Ext.P5 report has to be remitted to the Advocate
Commissioner in view of the objection of the petitioner.
The court below shall consider the said objections and take
a call on the same before passing the final judgment in the
suit.
With the above observations, the original petition is
disposed of.
Sd/-
C.S.DIAS, JUDGE
okb/22.12.22
//True copy// P.S. to Judge
APPENDIX OF OP(C) 2565/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PLAINT IN OS NO.576/2016
BEFORE THE ADDITIONAL MUNSIFF II KOZHIKODE
FILED BY THE RESPONDENT DATED 03.08.2016.
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT IN OS
NO.576/2016 BEFORE THE ADDITIONAL MUNSIFF II
KOZHIKODE FILED BY THE PETITIONER DATED
24.10.2016.
Exhibit P3 A TRUE COPY OF THE COMMISSION APPLICATION IN
IA 4532/2019 IN OS 576/2016 FILED BY THE
PETITIONER DATED 11.12.2019.
Exhibit P4 A TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER TO THE COMMISSION APPLICATION IN
IA 4532/2019 IN OS 576/2016 DATED 13.12.2019.
Exhibit P5 A TRUE COPY OF THE ROUGH SKETCH AND THE
REPORT FILED BY THE ADVOCATE
COMMISSIONER,DATED 25.11.2020.
Exhibit P6 THE TRUE COPY OF THE IA 1/2021 FILED BY THE
PETITIONER TO REMIT BACK THE COMMISSION
REPORT DATED 16.07.2021.
Exhibit P7 THE TRUE COPY OF THE COUNTER STATEMENT TO IA
1/2021 IN IA 4532/2019 IN OS 576/2016 FILED
BY RESPONDENT DATED 23.02.2023.
Exhibit P8 A TRUE COPY OF THE ORDER DATED 10.03.2022 IA
1/2021 IN IA 4532/2019 IN OS 576/2016 ON THE
FILE OF II ADDITIONAL MUNSIFF COURT
KOZHIKODE.
Exhibit P9 A TRUE COPY OF THE IA 1/2022 IN OS 576/2016
DATED 31.05.2022 FILED BY THE PETITIONER.
Exhibit P10 A TRUE COPY OF THE COUNTER STATEMENT DATED
21.06.2022 IN IA 1/2022 IN OS 576/2016 FILED
BY THE RESPONDENT.
Exhibit P11 THE TRUE COPY OF THE ORDER IN IA 1/2022 IN OS
576/2016 DATED 14.10.2022 ON THE FILE OF II
ADDITIONAL MUNSIFF COURT KOZHIKODE.
