Kerala High Court
Mydhili vs Sheena M on 17 June, 2022
OP(C) NO. 2705 OF 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
OP(C) NO. 2705 OF 2019
AGAINST THE ORDER IN I.A. 2069/2019 IN OS 594/2015 OF ADDITIONAL
MUNSIFF COURT,KOZHIKODE
PETITIONERS:
1 MYDHILI
AGED 72 YEARS
W/O.LATE KRISHNAN,THOTTATHIL HOUSE, THALAKKULATHUR
AMSOM DESOM, KOZHIKODE TALUK-673317.
2 PREMEELA
AGED 50 YEARS
D/O.LATE KRISHNAN, THOTTATHIL HOUSE, THALAKKULATHUR
AMSOM DESOM, KOZHIKODE TALUK-673317.
3 SHYAMALA
AGED 48 YEARS
D/O.LATE KRISHNAN, THOTTATHIL HOUSE, THALAKKULATHUR
AMSOM DESOM, KOZHIKODE TALUK-673317.
4 CHANDRI
AGED 45 YEARS
D/O.LATE KRISHNAN,THOTTATHIL HOUSE, THALAKKULATHUR
AMSOM DESOM, KOZHIKODE TALUK-673317.
5 UDAYAKUMAR
AGED 40 YEARS
S/O.LATE KRISHNAN,THOTTATHIL HOUSE, THALAKKULATHUR
AMSOM DESOM, KOZHIKODE TALUK-673317.
6 CHITHRALEKHA
AGED 38 YEARS
D/O.LATE KRISHNAN,THOTTATHIL HOUSE, THALAKKULATHUR
AMSOM DESOM, KOZHIKODE TALUK-673317.
BY ADVS.
SRI.C.MURALIKRISHNAN (PAYYANUR)
OP(C) NO. 2705 OF 2019
2
SRI.ABRAHAM GEORGE JACOB
SHRI.AKSHAY R
RESPONDENT:
SHEENA M.,
AGED 44 YEARS
D/O.VASU, W/O.ANIL KUMAR, NALAMKANDATHIL HOUSE,
ERANHIKKAL.P.O., PIN-673303.
BY ADV SRI.SRINATH GIRISH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 2705 OF 2019
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JUDGMENT
The original petition is filed to set aside the order dated
17.2.2019 in I.A.2069/2019 in O.S.594/2015 (Ext.P9) passed
by the Court of the Additional Munsiff-I, Kozhikode.
2. The petitioners are the plaintiffs in the above suit
filed against the respondent, seeking a decree for a
permanent perpetual prohibitory injunction to restrain the
defendant from disturbing the peaceful enjoyment of the
petitioners over plaint 'B' schedule pathway.
3. Pursuant to Ext.P2 application filed by the
petitioners, an Advocate Commissioner was appointed, who
filed Ext.P3 report. The said report was remitted back, and
thereafter, Ext.P4 report was filed. Since Ext.P4 report was
also incomplete, the petitioners filed a fresh application along
with Ext.P5 work memo to remit the commission report. Even
though an Advocate Commissioner inspected the property on
OP(C) NO. 2705 OF 2019
29.5.2017, Ext.P6 report was filed only on 7.11.2018. In
Ext.P6, the Advocate Commissioner has erroneously
observed the age of the construction carried out between
plaint 'A' and 'B' plaint schedule properties. Hence, the
petitioners had filed Ext.P7 application to remit Ext.P6
commission report. The same was objected by the respondent
through Ext.P8 objection. The court below, without
considering Exts.P7 and P8, has by the impugned Ext.P9
order dismissed Ext.P7 application. Ext.P9 is erroneous and
wrong. Hence the original petition.
4. Heard; Sri.C.Murali Krishnan, the learned counsel
appearing for the petitioners and Sri.Srinath Girish, the
learned counsel appearing for the respondent.
5. The point that arises for consideration in this
original petition is whether there is any illegality in Ext.P9
order passed by the court below?.
OP(C) NO. 2705 OF 2019
6. The grievance of the petitioners is that, in Exts.P3
and P4 reports the Advocate Commissioner has not
mentioned the age of the construction. But, in Ext.P6, the
Advocate Commissioner has, without any basis, made an
assessment regarding the age of the construction for which
she is not qualified. Therefore, the petitioners requested for
the remission of Ext.P6 commission report, so that the age of
the granite stone wall in between the plaint 'A' and 'B'
schedule properties can be assessed by an expert, which
would discredit Ext.P6 report. However, the court below has
by the impugned order, on the premise that there are already
three reports on record, disallowed Ext.P7 application.
7. It is trite, the opinion expressed by an Advocate
Commissioner is only corroborative in nature. It is up to the
parties to prove by cogent evidence on the matters
regarding the issues involved in the suit. Moreover, the
petitioners would be at liberty to always cross-examine the
Advocate Commissioner and discredit the opinion expressed
OP(C) NO. 2705 OF 2019
by the Advocate Commissioner in the commission reports.
8. On a consideration of the pleadings and materials
on record, I find that the Advocate Commissioner had not
earlier assessed the age of the construction, since she was
not called upon to do so. But, in Ext.P5 work memo, the
Advocate Commissioner is called upon to ascertain the
approximate age of the permanent structure in the property,
which she has done .
9. It was in the above factual background, that the
Advocate Commissioner has in Ext.P7 report mentioned
about the age of the construction of the building as per her
knowledge and assessment. That does not mean that the
same is conclusive in nature. It would be up to the
petitioners to object to the commission report and cross-
examine the Advocate Commissioner on the above aspect. I
do not find any error in Ext.P9 order warranting interference
by this Court in exercise of the jurisdiction under Article 227
of the Constitution of India.
OP(C) NO. 2705 OF 2019
With the above observations, leaving open the right
of the petitioners to cross-examine the Advocate
Commissioner, this original petition is dismissed.
Sd/
C.S.DIAS
ma/17/6/2022 JUDGE
OP(C) NO. 2705 OF 2019
APPENDIX OF OP(C) 2705/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT SCHEDULE PROPERTY.
EXHIBIT P2 TRUE COPY OF THE PETITION FOR APPOINTING
ADVOCATE.
EXHIBIT P3 TRUE COPY OF FIRST REPORT OF ADVOCATE
COMMISSIONER.
EXHIBIT P4 TRUE COPY OF 2ND REPORT FILED BY THE
ADOVCATE COMMISSIONER.
EXHIBIT P5 TRUE COPY OF THE MEMO.
EXHIBIT P6 TRUE COPY OF THE 3RD REPORT BY ADVOCATE
COMMISSIONER.
EXHIBIT P7 TRUE COPY OF THE I.A.2069/2019 WAS FILED FOR
REMITTING THE COMMISSIONER'S REPORT.
EXHIBIT P8 TRUE COPY OF OBJECTION.
EXHIBIT P9 ORDER DATED 17.8.19 OF THE LEARNED ADDL.
MUNSIFF COURT, KOZHIKODE IN I.A.2069/2019 IN
O.S.594/2015 DATED 17.8.2019.
