Kerala High Court
Elykutty Mathai vs Thomas Kunjukunju on 6 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
OP(C) NO. 1153 OF 2022
AGAINST THE COMMON ORDER DATED 3.3.2022 IN I.A.NO.2/2022 IN
O.S.NO.166/2013 AND IN I.A.NO.3/2022 IN O.S.NO.215/2014 AND
ORDER DATED 2.2.2022 IN I.A.NO.1/2022 IN O.S.NO.215/2014 OF
THE MUNSIFF COURT, PUNALUR
PETITIONER/1ST PETITIONER/1ST PLAINTIFF IN O.S.NO.215/2014
AND 1ST DEFENDANT IN O.S.NO.166/2013
ELYKUTTY MATHAI,
AGED 69 YEARS,
W/O. MATHAI,
AMARAKARAYIL NAIKAMPARAMBIL VEEDU,
MADAPPALLY P.O,
CHANGANACHERRY TALUK,KOTTAYAM,
PIN - 686546
BY ADVS. V.PHILIP MATHEWS
ANZIL ZACHARIAH
E.RADHAKRISHNAN
RESPONDENTS/ RESPONDENTS AND PETITIONERS 2 AND 3/ 1ST
DEFENDANT IN O.S.NO.215/2014 AND PLAINTIFFS 2 AND 3 AND
PLAINTIFF AND DEFENDANTS 2 AND 3 IN O.S.NO.166/2013
1 THOMAS KUNJUKUNJU,
AGED 73 YEARS,
S/O. VARGHESE,
NAIKAMPARAMPIL VEEDU(CHARUVILA PUTHEN VEEDU )
PUNNALA P.O,
PUNNALA VILLAGE
PATHANAPURAM TALUK,
KOLLAM, PIN - 689696
2 BINU MATHAI,
S/O. MATHAI,
AMARAKARAYIL NAIKAMPARAMPIL VEEDU,
MADAPPALLY P.O, CHANGANACHERRY TALUK
KOTTAYAM , PIN - 686546
O.P.(C)No.1153/2022
-:2:-
3 BINDU MATHAI,
D/O. MATHAI,
AMARAKARAYIL NAIKAMPARAMPIL VEEDU
MADAPPALLY P.O, CHANGANACHERRY TALUK,
KOTTAYAM, PIN - 686546
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1153/2022
-:3:-
Dated this the 6th day of July,2022
JUDGMENT
The original petition is filed challenging the order
dated 03.03.2022 in I.A.No.2/2022 in O.S.No.166/2013
and I.A.No.3/2022 in O.S.No.215/2014(Ext.P5) of the
Court of the Munsiff, Punalur, and the order dated
02.02.2022 in I.A.No.1/2022 in O.S.No.215/2014
(Ext.P9) of the same court.
2. The petitioner's case, in brief, in the
memorandum of the original petition is that; she is the
first plaintiff in O.S.No.215/2014 and the first defendant
in O.S.No.166/2013. The respondents in the original
petition are the first defendant and the plaintiffs 2 and 3
in O.S.No.215/2014, and the first respondent is also the
plaintiff in O.S.No.166/2013 and the respondents 2 and
3 are defendants 2 and 3 in the above suit. The parties
O.P.(C)No.1153/2022
are, for the sake of convenience, referred to as per
their status in the original petition.
3. The petitioner and her daughters -
respondents 2 and 3 - have filed O.S.No.215/2014
against the first respondent, inter alia, for a decree to
set aside the Deed No.73/2003 executed in favour of
the first respondent. On the other hand, the first
respondent has filed O.S.No.166/2013 against the
petitioners and respondents 2 and 3, inter alia, for a
decree of permanent prohibitory injunction. The
petitioner and the respondents 2 and 3 had filed Ext.P4
application to depute an Advocate Commissioner with
the assistance of a Surveyor to demarcate the property.
The application was opposed by the first respondent.
The court below has by the impugned Ext.P5 order
rejected the application. Similarly, the petitioner had
also filed Ext.P8 application to compare the signature
of her husband on Deed No.73/2003 by an expert. The
O.P.(C)No.1153/2022
said application was also objected by the first
respondent. The court below has by the impugned
Ext.P9 order, dismissed the said application. Both
Exts.P5 and P9 are erroneous and wrong. Hence, the
original petition.
4. Heard; Sri. V. Philip Mathew, the learned
counsel appearing for the petitioner.
5. The points that arise for consideration in this
original petition are:
(i) whether there is any illegality in Ext.P5
order;
(ii) whether there is any illegality in Ext.P9
order.
6. Admittedly, the petitioner and the
respondents 2 and 3 have filed O.S.No.215/2014
seeking to set aside a sale deed. It is the first
respondent who has filed O.S.No.166/2013, seeking a
decree for permanent prohibitory injunction. An
O.P.(C)No.1153/2022
Advocate Commissioner has filed a report and plan in
O.S.No.166/2013 as early as on 22/05/2019. The
petitioner has not even bothered to file an objection to
the report. The property has been well identified by
the Advocate Commissioner. The court below has
scrutinised the report and found the same to be in
order. It is only when the suit was listed for trial, that
the petitioner has come up with the present
application. An Advocate Commissioner's report is not
something that can be set aside on the mere asking of
a party. The necessity of remitting the commission
report does not arise. I do not find any illegality in
Ext.P5 order passed by the court below warranting
interference by this Court under Article 227 of the
Constitution of India. Thus, I find Point No.1 against
the petitioner and confirm Ext.P5 order.
7. The next point is whether there is any
necessity to send the Deed bearing No.73/2003 for
O.P.(C)No.1153/2022
forensic examination. It is seen from the records, this
Court, in an earlier round of litigation between the
parties in O.P.(C) No.8/2022, had declined the very
same relief sought for by the petitioner. It is,
thereafter, that the petitioner has filed Ext.P8
application for an identical relief. The court below has
rightly dismissed the application with costs. I fully
endorse the course adopted by the court below. There
is no irregularity or illegality in Ext.P9 order.
In the result, this original petition is dismissed,
confirming Exts.P5 and P9 orders passed by the court
below.
Sd/-
C.S.DIAS,JUDGE
DST/06.07.22 //True copy//
P.A.To Judge
O.P.(C)No.1153/2022
APPENDIX
PETITIONER EXHIBITS
EXHIBIT1 COPY OF PLAINT O.S NO. 215/2014 ON THE
FILE OF MUNSIFF'S COURT, PUNALUR
EXHIBIT2 COPY OF PLAINT O.S NO. 166/2013 ON THE
FILE OF MUNSIFF COURT, PUNALUR
EXHIBIT P3 COPY OF I.A NO. 2/2022 IN O.S NO.
EXHIBIT4 COPY OF I.A.NO. 3/2022 IN O.S
NO.215/2014 ON THE FILE OF MUNSIFF'S
COURT, PUNALUR
EXHIBIT P5 COPY OF COMMON ORDER DATED 3.3.2022 IN
EXHIBITS P3 AND P4
EXHIBIT P6 COPY OF PROCEEDINGS PAPER IN THE COURT
OF MUNSIFF, PUNALUR IN RESPECT OF O.S
NO. 166/2013
EXHIBIT P7 COPY OF PROCEEDINGS PAPER IN THE COURT
OF MUNSIFF, PUNALUR IN RESPECT OF O.S.
NO. 215/2014
EXHIBIT P8 COPY OF APPLICATION CONTAINED IN
PASSPORT AND THE SIGNATURE IN DEED NO.
73/2003
EXHIBIT P9 COPY OF ORDER DATED 2.2.2022 IN I.A NO.
1/2022 IN O.S NO. 215/20174 (EXHIBIT
P8)
RESPONDENT'S EXHIBITS: NIL
