Lissy Joseph vs Vinod Kumar
2022 Latest Caselaw 1905 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
                        OP(C) NO. 195 OF 2022
  AGAINST THE ORDER/JUDGMENT IN OS 203/2020 OF MUNSIFF COURT,
                               VAIKOM
PETITIONER/PLAINTIFF:

            LISSY JOSEPH
            AGED 56 YEARS
            W/O.ANTONY, MOOZHIKKATTU (H),
            VALACHIRA KARAYIL, KADUTHURUTHY VILLAGE,
            VAIKOM TALUK, KOTTAYAM, PIN - 686 004.
            BY ADVS.
            J.JULIAN XAVIER
            JOSE. V.V. (THENGATHARA)
            FIROZ K.ROBIN


RESPONDENT/DEFENDANT:

            VINOD KUMAR
            AGED 52 YEARS
            S/O.VELAYUDHAN, MALKAKUNNU (H),
            KADUTHURUTHY P.O.,
            PRESENTLY RESIDING AT MALIAKAKKUNU (H),
            PIRAVOM P.O., MUVATTUPUZHA,
            ERNAKULAM, PIN - 686 664.
            BY ADVS.
            SHIJIN(B/O)
            M.P.HARIDAS
            BIJU HARIHARAN
            P.C.SHIJIN
            RISHIKESH HARIDAS


     THIS    OP   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 195 OF 2022
                                    2




                                JUDGMENT

Dated this the 18th day of February, 2022

This Original Petition is one filed by the plaintiff in

O.S.203/2020 on the files of the Munsiff Court, Vaikom, where

he filed a suit for mandatory injunction to cut and remove a tree

standing in the property of the defendant, which is dangerous

and hazardous, according to the petitioner.

2. When the matter heard last time, the learned

counsel for the respondent fairly conceded the possibility of cut

and removal of the tree in a cordial manner.

3. Today, when the matter is taken up for hearing, the

learned counsel for the defendant submitted that the defendant

filed written statement as early on 23.01.2022 expressing his

willingness to cut and remove the tree. Thereafter on

30.01.2022, this Original Petition was filed without disclosing

the said fact. But the learned counsel for the petitioner

submitted that without knowing the contents of the written

statement, this Original Petition has been filed. OP(C) NO. 195 OF 2022

4. Going by the submissions made at the Bar, it is

discernible that the defendant is ready to cut and remove the

coconut tree, the subject matter of the dispute, so as to save

the apprehension of the plaintiff. But it is submitted by the

learned counsel for the respondent/defendant that a

Commissioner may be deputed to execute the work to avoid

further allegation from both sides in the matter of cut and

removal of the tree and the subsequent events. Appointment of

a Commission is conceded by the learned counsel for the

petitioner also.

5. Therefore, I direct the learned Munsiff to appoint a

Commission without any formal application, after fixing a

reasonable bata, and direct the Commissioner to execute the

work of cut and removal of the alleged coconut tree at his

supervision, amicably and file a report regarding the said work

before the Court. The learned Munsiff is directed to do the said

exercise within a period of seven days from the date of receipt

or production of a copy of this judgment.

6. In the event, the trial of the case is necessary for

want of cut and removal of tree by appointing a Commission,

the same shall be expedited within a period of three months. I OP(C) NO. 195 OF 2022

hope that the matter will be settled by cutting and removing the

tree in the presence of the Commissioner as ordered.

The Original Petition is disposed of accordingly.

It is made clear that the expense for the Commission shall

be paid by the plaintiff/petitioner herein. The expense for

cutting and removing the coconut tree shall be borne by the

defendant.

Sd/-

A. BADHARUDEEN JUDGE

nkr OP(C) NO. 195 OF 2022

APPENDIX OF OP(C) 195/2022

PETITIONER EXHIBITS Exhibit P1 PHOTOS OF THE COCONUT TREE AND BUILDING. Exhibit P2 TRUE COPY OF THE PLAINT DATED 08/10/2020 IN OS NO.203/2020 ON THE FILES OF MUNSIFF COURT VAIKOM.

Exhibit P3 TRUE COPY OF THE COMMISSION REPORT DATED 19/10/2020 IN O.S.NO.203/2020 OF THE MUNSIFF COURT, VAIKOM.

Exhibit P4 TRUE COPY OF THE ROUGH SKETCH PRODUCED ALONG WITH EXT.P3.

Exhibit P5 TRUE COPY OF THE PETITION DATED 25/02/2021 FILED UNDER ORDER 9 RULE 6 OF CPC.

Exhibit P6 TRUE COPY OF THE ORDER DATED 18/03/2021 IN IA 5/2021 IN OS NO.203/2020.