Kerala High Court
G.Surendran vs Stephan on 7 July, 2022
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OP (C)No. 106 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
OP(C) NO. 106 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 257/2019 OF II ADDITIONAL
MUNSIFF COURT ,NEYYATTINKARA
PETITIONER/S:
G.SURENDRAN
AGED 56 YEARS
S/O.GANGADHARAN NADAR, MUPPARATHALAIKAL GLORI
BHAVAN, MARUKIL, PALLICHAL VILLAGE,
THIRUVANANTHAPURAM.
BY ADV M.SREEKUMAR
RESPONDENT/S:
1 STEPHAN
S/O.DANIEL, MUPPARATHALAIKAL PUTHEN VEEDU,,
MARUKIL, PALLICHAL P.O., NEYYATTINKARA,
THIRUVANANTHAPURAM-695020.
2 JIJI STEPHAN,
D/O.LEELA, MUPPARATHALAIKAL PUTHEN VEEDU,, MARUKIL,
PALLICHAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-
695020.
3 PAVIN ANTO,
S/O.G.SURENDRAN, MUPPARATHALAIKAL GLORI BHAVAN,
MARUKIL, PALLICHAL P.O., NEYYATTINKARA,
THIRUVANANTHAPURAM-695020.
BY ADVS.
SRI.V.G.ARUN (K/795/2004)
SMT.V.JAYA RAGI
SRI.NEERAJ NARAYAN
SRI.R.HARIKRISHNAN (KAMBISSERIL)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP (C)No. 106 of 2020
C.S DIAS,J.
---------------------------
OP (C)No. 106 of 2020
-----------------------------
Dated this the 7th day of July, 2022.
JUDGMENT
The original petition is filed challenging the common
order dated 10.12.2019 passed by the Court of the
Additional Munsiff-II, Neyyattinkara in IA Nos.7120 and
7427 of 2019 (Ext P12) in O.S No.257/2019.
2. The petitioner's case, in a nutshell, relevant for
the determination of the original petition is that, he is
the first defendant in the above suit, which is filed by the
respondents 1 and 2, seeking a decree of permanent
perpetual injunction against the petitioner and the third
respondent. The learned Munsiff had by Ext P8 common
order passed the following directions:
In the result, IA No.1938/2019 is allowed and IA
No.3384/2019 is partly allowed as follows:
OP (C)No. 106 of 2020
1) The respondents are restrained by an order of temporary
injunction from making any construction by taking any
portions of plaint A schedule property and from making
construction within the plaint B schedule property without
leaving sufficient space/set back as mandated by Kerala
Panchayat Building Rules, 2011 until disposal of the suit.
2) The petitioners are restrained by an order of temporary
injunction from trespassing into the petition schedule
property in IA No.3384/2019 and from obstructing the
construction of residential building within the petition
schedule property as per the building permit, Ext B6.
3) There shall be no order as to cost.
2.1 Alleging violation of Ext P8 order, the
respondents 1 and 2 had filed Ext P9 application under
Order 39 Rule 2A of the Code of Civil Procedure, seeking
prosecution. To substantiate their contentions in Ext P9,
the respondents 1 and 2 had filed Ext P10 application,
seeking the appointment of an Advocate Commissioner.
The petitioner had also filed Ext P11 application to
appoint an Advocate Commissioner. However, the court
OP (C)No. 106 of 2020
below, by the impugned Ext P12 order, allowed Ext P10
commission application and dismissed Ext P11
commission application. It is aggrieved by the above
course of the court below that the petitioner has
approached this Court.
3. Heard; Sri.M.Sreekumar, the learned counsel
appearing for the petitioner and Sri.V.G Arun, the learned
counsel appearing for the respondents 1 and 2.
4. When the original petition was taken up for
consideration, the learned counsel appearing for the
respondents 1 and 2 submitted that the respondents 1
and 2 have no much grievance in an Advocate
Commissioner also elucidating the matter that have been
sought for by the petitioner in Ext P11 commission
application. Even though the court below has rejected
Ext P11 application, the respondents 1 and 2 have been
put to severe hardship since the suit has been stayed for
the last more than 2 ½ years. Hence, Ext P12 common
order may be modified to the limited extent of dismissing
Ext P11 application and the same Advocate
OP (C)No. 106 of 2020
Commissioner may be directed to elucidate the matters
sought for by the petitioner in Ext P11 application. I find
the course suggested by the learned counsel appearing
for the respondents 1 and 2 to be reasonable and fair.
Moreover, no prejudice will be caused to the respondents
1 and 2 if matters sought for in Ext P11 are also
identified.
In the above legal and factual matrix, in exercise of
the supervisory powers of this Court under Article 227 of
the Constitution of India, I modify Ext P12 order by
allowing Ext P11 application also. Both the petitioner and
the respondents would be at liberty to also file their
work memos before the Advocate Commissioner. The
Advocate Commissioner shall as per the same terms and
conditions in Ext P12 order, inspect the property and file
the report touching on matters sought for in Exts P10
and P11 applications and the work memos submitted by
the respective parties. Since the suit is of the year 2019, I
direct the court of the Additional Munsiff-II,
OP (C)No. 106 of 2020
Neyyattinkara, to consider and dispose of the same, in
accordance with law, as expeditiously as possible.
sd/-
sks/7.7.2022 C.S.DIAS, JUDGE
OP (C)No. 106 of 2020
APPENDIX OF OP(C) 106/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IS OS NO.257/2019
ON THE FILE OF THE ADDITIONAL MUNSIFF
COURT-II, NEYYATTINKARA DATED 14.3.2019
FILED BY RESPONDENTS 1 & 2.
EXHIBIT P2 TRUE COPY OF PETITION IN IA NO.1938/19 IN
OS NO.257/19 DATED 14.3.2019 FILED BY
RESPONDENTS 1 & 2.
EXHIBIT P3 TRUE COPY OF OBJECTION FILED BY
PETITIONER AND 3RD RESPONDENT TO EXT.P2
DATED 1.4.2019.
EXHIBIT P4 TRUE COPY OF PETITION IN IA NO.3384/19 IN
OS NO.257/19 DATED 12.6.2019 FILED BY
PETITIONER.
EXHIBIT P5 TRUE COPY OF COUNTER AFFIDAVIT FILED BY
RESPONDENTS 1 & 2 TO EXT.P4 DATED
22.7.2019.
EXHIBIT P6 TRUE COPY OF THE COMMISSIONER REPORT
DATED 30.3.2019 IN OS NO.257/19.
EXHIBIT P7 TRUE COPY OF ROUGH SKETCH FILED BY
ADVOCATE COMMISSIONER IN OS NO.257/19.
EXHIBIT P8 TRUE COPY OF ORDER DATED 3.8.2019 IN IA
NOS.1938/2019 & 3384/2019 IN OS
NO.257/2019 OF ADDITIONAL MUNSIFF COURT-
II, NEYYATTINKARA.
EXHIBIT P9 TRUE COPY OF PETITION IN IA NO.7122/19 IN
OS NO.257/19 DATED 21.11.2019 FILED BY
RESPONDENTS 1 & 2.
EXHIBIT P10 TRUE COPY OF PETITION IN IA NO.7120/19 IN
OS NO.257/19 DATED 21.11.2019 FILED BY
RESPONDENTS 1 & 2.
EXHIBIT P11 TRUE COPY OF PETITION IN IA NO.7427/19 IN
OS NO.257/19 DATED 3.12.2019 FILED BY
PETITIONER & 3RD RESPONDENT.
EXHIBIT P12 TRUE COPY OF COMMON ORDER IN IA
NO.7120/19 & IA NO.7427/19 IN OS
NO.257/2019 DATED 10.12.2019 OF THE
ADDITIONAL MUNSIFF COURT-II,
NEYYATTINKARA.
