Kerala High Court
P.R.Shaji vs Seena Saju on 23 November, 2022
OP(C) NO. 4126 OF 2012 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 23RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944
OP(C) NO. 4126 OF 2012
AGAINST THE ORDER/JUDGMENTOS 271/2010 OF MUNSIFF COURT, NORTH
PARAVUR
PETITIONER/S:
P.R.SHAJI
AGED 57 YEARS
S/O.LATE RAMAKRISHNAN, PUTHEZHATHU VEETTIL, PATTANAM
KARA, VADAKKEKKARA VILLAGE, VADAKKEKKARA P.O., PARUR
TALUK, ERNAKULAM DISTRICT - 683 522.
BY ADVS.
SRI.VARGHESE C.KURIAKOSE
SRI.G.MANU KRISHNAN
RESPONDENT/S:
SEENA SAJU
AGED 45 YEARS
W/O.SAJU, SEENA BHAVAN (THAIPARAMBIL VEEDU), MUNAMBAM
KARA, PALLIPORT P.O., KUZHUPILLY VILLAGE, KOCHI TALUK,
ERNAKULAM DISTRICT - 683 515.
BY ADVS.
SRI.V.V.ASOKAN
SRI.P.P.RAMACHANDRAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 4126 OF 2012 2
JUDGMENT
Confronted with Ext.P5 order passed in I.A. No.1297
of 2012 in O.S.No.271 of 2010 of the Court of the Munsiff,
North Paravur, the plaintiff in the suit has filed the original
petition. The respondent is the defendant in the suit.
2. The antecedent facts leading to Ext.P5 order, in a
nutshell, are: the petitioner has filed the suit against the
respondent for a permanent prohibitory injunction, to
restrain the respondent and any person from entering the
plaint schedule property and also from putting up any
construction so as to cause damage to the chinese fishing
dip-net that has been installed in the plaint schedule
property. The suit is resisted by the respondent through
Ext.P2 written statement. The petitioner had taken out an
ex-parte Advocate Commission and Ext.P4 report was filed.
Thereafter, the petitioner filed I.A. No.1297 of 2012
(Ext.P3) to direct the Advocate Commissioner to measure
the properties with the assistance of the Taluk Surveyor.
The application was objected by the respondent. The court
below, by the impugned Ext.P5 order, has dismissed Ext.P3
application on the ground that there is no necessity to
conduct a survey commission as the suit is one for
injunction simplicitor. Ext.P5 is erroneous and wrong.
Hence, the original petition.
3. The respondent has filed a detailed counter
affidavit denying the allegations in the original petition. It
is contended that the petitioner has filed Ext.P3
application with the sole and oblique intention of
protracting the determination of the suit. The respondent
has already filed O.S. No.54 of 2011 against the petitioner,
wherein an order of temporary injunction has been passed,
which order is confirmed by the appellate court in C.M.A.
No.11 of 2011. The original petition is devoid of any merit
and may be dismissed.
4. Heard Sri.Varghese Kuriakose, the learned
counsel appearing for the petitioner and Sri. Mayankutty
Mather, the learned counsel appearing for the respondent.
5. The point is whether there is any error or
illegality in Ext.P5 order.
6. Undisputedly, the suit is filed for an injunction
simplicitor. There is already Ext.P4 commission report on
record. The petitioner has not filed any
application/objection to Ext.P4 report to remit/set aside
the report. Later, the petitioner has filed Ext.P3 application
to take out a survey commission.
7. This Court in Madhavan v. Narayanan Kutty
and others [2019 (4) KHC 854] has categorically held that
in a suit for injunction simplicitor, there is no necessity to
take out a survey commission, unless the circumstance so
justifies such a course.
8. It is trite, a commission report is only
corroborative in nature. As the suit is for injunction
simplicitor, it is up to the petitioner to prove that he is in
possession of the plaint schedule property.
9. On an analysis of the pleadings and materials on
record, especially Ext.P3 application, I am of the definite
view that there is no necessity to take out a survey
commission. I do not find any error in Ext.P5 order
warranting interference by this Court under Article 227 of
the Constitution of India. The original petition fails and is
dismissed.
Sd/-
C.S.DIAS, JUDGE
okb/23.11.22
//True copy// P.S. to Judge
APPENDIX OF OP(C) 4126/2012
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOSTAT COPY OF PLAINT IN ON THE FILES
OF MUNSIFF'S O.S.NO.271/2010 COURT, NORTH
PARUR.
Exhibit P2 TRUE PHOTOSTAT COPY OF WRITTEN STATEMENT
FILED BY THE RESPONDENT IN O.S.NO.271/2010 ON
THE FILES OF HON'BLE MUNSIFF'S COURT, NORTH
PARUR.
Exhibit P3 TRUE PHOTOSTAT COPY OF COMMISSION APPLICATION
AS I.A.NO.1297/2012 IN O.S.NO.271/2010 ON THE
FILES OF HON'BLE MUNSIFF'S COURT, NORTH PARUR
.
Exhibit P4 TRUE PHOTOSTAT COPY OF THE URGENT COMMISSION
REPORT FILED BY ADV. COMMISSIONER.
Exhibit P5 TRUE PHOTOSTAT COPY OF THE ORDER DATED
09.10.2012 PASSED BY THE LEARNED MUNSIFF,
NORTH PARUR IN I.A.NO. 1297/2012 IN
O.S.NO.271/2010.
RESPONDENT EXHIBITS
Exhibit R1 A TRUE COPY OF THE DOCUMENT NO 1395/1997 DTD.
280201997.
Exhibit R1 B TRUE COPY OF THE PROCEEDINGS OF ZONAL DEPUTY
DIRECTOR OF FISHERIES ERNAKULAM DATED
5.12.2001.
Exhibit R1 C TRUE COPY OF THE CERTIFICATE ISSUED BY DEPUTY
DIRECTOR DTD 18.5.2010.
Exhibit R1 D TRUE COPY OF PERMIT GIVEN BY THE SENIOR TOWN
PLANNER DTD. 21.11.2012.
Exhibit R1 E TRUE COPY OF ORDER IN I.A.NO.250/2011 IN
O.S.NO.NO 54/2011 MUNSIFF COURT, N.PARAVUR
DTD 16.3.2012.
Exhibit R1 F TRUE COPY OF JUDGMENT IN CMA NO.11/2011 OF
THE ADDL. DISTRICT COURT, N.PARAVUR
DTD.11.1.2012
