Jijo vs Poulose
2023 Latest Caselaw 1283 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                       OP(C) NO. 123 OF 2023
 AGAINST THE ORDER/JUDGMENT IN O.S NO.144/2016 OF MUNSIFF
                              COURT, ALUVA


PETITIONER/PETITIONER/PLAINTIFF :-

            JIJO
            AGED 48 YEARS, S/O KURIYAN
            PADINJAREVEETTIL HOUSE, MANJAPPRA,
            ALUVA, ERNAKULAM - 683581

            BY ADV RESMI NANDANAN


RESPONDENTS/RESPONDENTS/DEFENDANTS :-

    1       POULOSE
            S/O.KUNJUVAREETH,
            MANIKYATHAN HOUSE,
            KOLLAKKODE KARA, AYYAMPUZHA
            ERNAKULAM., PIN - 683581

    2       SEBASTIAN
            SEBASTIAN,S/O.VARKEY, MADAN HOUSE
            MANJAPARA, ALUVA,ERNAKULAM., PIN - 683581

    3       BABY
            S/O VARGHESE
            MADAN HOUSE, MANJAPARA
            ALUVA, ERNAKULAM., PIN - 683 581


     THIS     OP   (CIVIL)    HAVING   COME   UP    FOR    ADMISSION    ON
18.01.2023,    THE    COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING :-
 OP(C) NO. 123 OF 2023
                                2




                          JUDGMENT

Dated this the 18th day of January, 2023

Aggrieved by Ext.P4 order passed in I.A.No.5/2022 in

O.S.No.144/2016 by the Court of the Munsiff's, Aluva, the

plaintiff in the suit has filed the original petition. The

respondents are the defendants in the suit.

2. The skelatal facts, relevant for determination of the

original petition, are: the petitioner has filed the suit for

decree of declaration and consequential reliefs. The suit is

resisted by the respondents through Ext.P2 written

statement. The petitioner filed I.A.No.5/2022 (Ext.P3), for the

appointment of an Agricultural Officer to calculate the annual

profit derived from the plaint-schedule property. The court

below, by Ext.P4 order, dismissed Ext.P3 application. Ext.P4

is palpably wrong and unsustainable in law. Hence the

Original Petition.

3. Heard; Smt.Resmi Nandanan, the learned counsel

appearing for the petitioner on admission. OP(C) NO. 123 OF 2023

4. The sole question is, is there is any illegality in

Ext.P4 order.

5. On a reading of Ext.P3 application it can be

gathered that the application is filed under Section 151 of the

Code of Civil Procedure (in short, 'Code'), for a direction to

appoint an Agricultural Officer to calculate the annual profit

that would be derived from the property.

6. The court below dismissed the application on the

finding that the application is not in order and there is no

enabling provision to appoint an Agricultural Officer to

calculate the annual gross profit as prayed in Ext.P3

application.

7. Section 75 read with Order 26 of the Code, enables

courts to issue a commission for the purpose of holding a

scientific, technical or expert investigation or perform any

other ministerial act.

8. Going by the language and tenor in Ext.P3

application, I am of the view that, although the application

was filed under Section 151 of the Code, the intention of the OP(C) NO. 123 OF 2023

petitioner was to carry out a technical investigation through

an Advocate Commissioner with the assistance of an

Agricultural Officer. It is trite, misquoting of a provision is

irrelevant and inconsequential.

In the above consepectus, I hold that the dismissal

of Ext.P3 application will not stand in the way of the

petitioner working out his remedies as contemplated under

law for the above said purpose.

With the above observations, the Original Petition is

disposed of.

Sd/-

C.S.DIAS, JUDGE SMA OP(C) NO. 123 OF 2023

APPENDIX

PETITIONER'S EXHIBITS :-

EXHIBIT P1 :- A TRUE COPY OF THE PLAINT O.S.NO.144/2016.

EXHIBIT P2 :- A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS.

EXHIBIT P3 :- A TRUE COPY OF THE I.A.NO.5/2022 DATED 10.08.2022.

EXHIBIT P4 :- A TRUE COPY OF THE ORDER DATED 10.08.2022 IN I.A.NO.5/2022