Mary vs T.F. Joseph
2023 Latest Caselaw 5168 Ker

Citation : 2023 Latest Caselaw 5168 Ker
Judgement Date : 18 April, 2023

Kerala High Court

Mary vs T.F. Joseph on 18 April, 2023

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
     TUESDAY, THE 18TH DAY OF APRIL 2023 / 28TH CHAITHRA, 1945
                         OP(C) NO. 954 OF 2023
 PROCEEDINGS IN OS 878/2010 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM
PETITIONER/DEFENDANT NO.2,3 AND ADDITIONAL DEFENDANT NO.7:

    1     MARY,
          AGED 58 YEARS,
          W/O. BABU , KOLLAMPARAMBIL( H) , SYRIAN CHURCH ROAD ,
          ERNAKULAM, PIN - 682 031.
    2     ROSSY,
          AGED 79 YEARS,
          W/O. LATE K.L. JOSEPH , KOLLAMPARAMBIL (H) , SYRIAN
          CHURCH ROAD, ERNAKULAM, PIN - 682 031.
    3     GLANCY,
          AGED 31 YEARS,
          S/O. LATE BABU , KOLLAMPARAMBIL ( H) , SYRIAN CHURCH
          ROAD , ERNAKULAM, PIN - 682 031.
          BY ADVS.
          P.MOHAMED SABAH
          LIBIN STANLEY
          SAIPOOJA
          SADIK ISMAYIL
          R.GAYATHRI
          M.MAHIN HAMZA
          ALWIN JOSEPH


RESPONDENTS/PLAINTIFF, DEFENDANT NO.1,4 AND ADDITIONAL DEFENDATNS
NO.5,6 AND 8:

    1     T.F. JOSEPH,
          AGED 82 YEARS,
          S/O. CHEEKAMMA, THOTTUSSERY HOUSE , SYRIAN CHURCH
          ROAD , ERNKALUMA, PIN - 682 031.
    2     BABU ( DIED),
          S/O. LATE K.L. JOSEPH, KOLLAMPARAMBIL (H), SYRIAN
          CHURCH ROAD, ERNAKULAM, PIN - 682 031.
    3     VELAMAKUTTY ( DIED),
          D/O LATE LONAN, PAZHAYAMTHOTTATHIL HOUSE , MULAVUKKAD,
          PIN - 682 031.
    4     JOSSY,
          S/O. LATE LASSAR, AGED ABOUT 68,
          PAZHAYAMTHOTTATHILHOUSE, SHAPPUMPADY JUNCTION,
          KUMBALANGI, PIN - 682 007.
 OP(C) NO. 954 OF 2023
                                      2

     5       JOHNY ( DIED),
             S/O. LATE LASSAR , PAZHAYAMTHOTTATHIL HOUSE ,
             MULAVUKKAD P.O, ERNAKULAM, PIN - 682 504.
     6       PHILOMINA,
             AGED 58 YEARS,
             W/O. LATE JOHNY, RESIDING AT PAZHAYAMTHOTTATHIL
             HOUSE (JUTHAMPARAMBIL HOUSE), MULAVUKKAD P.O. ,
             ERNAKULAM, PIN - 682 504.
             BY SRI.R.T.PRADEEP
      THIS    OP   (CIVIL)      HAVING    COME   UP    FOR    ADMISSION   ON
18.04.2023,     THE     COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 954 OF 2023
                                   3


                             JUDGMENT

The petitioners are defendants 2, 3 and 7, the 1 st respondent is

the plaintiff and the remaining respondents are defendants 1, 4, 5, 6

and 8 in O.S.No.878 of 2010 pending on the file of the Principal

Munsiff Court, Ernakulam.

2. The suit is one for fixation of boundary and also for

injunction. The petitioners raised a claim for kudikidappu in respect

of a hut situated in the Plaint B Schedule property. They filed an

application seeking permission to do the maintenance and repair

works of the said hut. A Commission was appointed by the court

below to oversee the said work. The Commissioner filed a report

stating that to ascertain the plinth area of the hut in question, the

assistance of an expert is required. Hence, the petitioners filed a list

of experts to assist the Commissioner for assessing the plinth area of

the hut as required by the Commissioner. The grievance of the

petitioners is that no order has been passed by the court below on the

request of the Advocate Commissioner to appoint an expert to assist

him. It is in these circumstances, the petitioners have approached

this Court.

3. Heard Smt.Saipooja, the learned counsel for the

petitioners and Sri.R.T.Pradeep, the learned counsel for the OP(C) NO. 954 OF 2023

respondents.

4. The Advocate Commissioner felt that he requires the

assistance of an expert, preferably an Engineer to properly execute

the task addressed to him. Hence it is absolutely necessary to give

such an assistance, which is permissible under law. The petitioners

have already furnished a panel of experts. The learned counsel for the

respondents, Sri.R.T.Pradeep submits that he will also furnish a

panel of experts and the learned Munsiff may select a person from

both panels.

5. Having heard both sides, this Original Petition is

disposed of as follows:

1) The respondents shall furnish a panel of experts

before the learned Munsiff before the court

reopens.

2) The learned Munsiff shall appoint an expert

from the panels to assist the Advocate

Commissioner on 24.05.2023, the date on which

the case stands posted.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE DK OP(C) NO. 954 OF 2023

APPENDIX OF OP(C) 954/2023

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE ORDER DATED 19-03-

2020 IN IA NO. 8036/2019 IN OS. NO.

878/2010 ON THE FILE OF MUNSIFF COURT , ERNAKULAM Exhibit P2 THE TRUE COPY OF THE JUDGEMENT DATED 07.12.2022 IN O.P. ( C) NO. 934/2020 ON THE FILE OF THE HON'BLE HIGH COURT OF KERALA Exhibit P3 THE TRUE COPY OF THE INTERIM REPORT 20 -

01-2023 SUBMITTED BY ADVOCATE COMMISSIONER, MITHUN THOMAS, BEFORE THE LEARNED PRINCIPAL MUNSIFF COURT, ERNAKULAM Exhibit P4 THE TRUE COPY OF THE PROCEEDINGS IN O.S.