Kerala High Court
Naseela vs Azad on 27 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
OP(C) NO. 154 OF 2023
IN OS 37/2013 OF MUNSIFF COURT,VARKALA
PETITIONER:
NASEELA
AGED 55 YEARS
W/O. HAKKIM, VILAYIL VEEDU,
MELVETTOOR DESOM, VETTOOR P.O,
VETTOOR, THIRUVANANTHAPURAM DISTRICT,
PIN - 695312
BY ADVS. R.RAJESH (VARKALA)
MANU RAMACHANDRAN
M.KIRANLAL
SAMEER M NAIR
GEETHU KRISHNAN
SAILAKSHMI MENON
RESPONDENTS:
1 AZAD,
AGED 62 YEARS,
S/O MOHAMMED,
RESIDING AT: M.K.HOUSE,
MELVETTOOR DESOM, VETTOOR VILLAGE,
VETTOR P.O, THIRUVANANTHAPURAM,
PIN - 695312
2 SULEKHA
AGED 56 YEARS
W/O AZAD, RESIDING AT: M.K. HOUSE,
MELVETTOOR DESOM, VETTOOR VILLAGE,
VETTOR P.O, THIRUVANANTHAPURAM,
PIN - 695312
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)No.154/2023
-:2:-
Dated this the 27th day of January,2023
JUDGMENT
Aggrieved by Ext P7 order passed in I.A.No.1/2021
in O.S.No.37/2013 by the Court of the Munsiff,
Varkala, the defendant in the suit has filed the original
petition. The respondents are the plaintiffs in the suit.
2. Facts leading to Ext P7 order, in a narrow
compass, are:
(i) The respondents have filed the above suit,
against the petitioner, for a decree of
permanent prohibitory injunction. The
petitioner has resisted the suit by filing Ext P2
written statement with a counter claim, seeking
decrees of prohibitory injunction and mandatory
injunction. The respondent has filed Ext P3
replication to Ext P2 counter claim.
(ii) At the instance of the petitioner, an Advocate
Commissioner was appointed and the property
was identified through Ext P4 report and plan.
Thereafter, the petitioner amended the counter
O.P.(C)No.154/2023
claim and its schedules.
(iii)Ext P4 commission report and sketch only
partially identifies the property.
(iv)Finding Ext P4 report and sketch to be
inadequate, the petitioner filed I.A.No.1/2022
(Ext P5), to specifically identify the counter
claim schedule No.3 property.
(v) Without carrying out the identification, as
prayed in Ext P5 application, an effective decree
cannot be passed. The said application was
resisted by the respondents through Ext P6
written objection.
(vi)The court below, without appreciating Ext P5 in
its proper perspective, by the impugned Ext P7
order, has dismissed Ext P5 application.
(vii)Ext P7 is manifestly wrong and unsustainable in
law. Hence, the original petition.
3. Heard; Sri. Rajesh R (Varkala), the learned
O.P.(C)No.154/2023
counsel appearing for the petitioner on admission.
4. The short question is, is there any illegality in
Ext P7 order?.
5. The suit is of the year 2013. The petitioner
filed the amended Ext P2 counter claim on 19.07.2021.
The petitioner as well as the respondents have sought
for decrees of injunction as against each other, in the
plaint and counter claim.
6. At the instance of the petitioner, Ext P4
report and sketch dated 26.06.2020 is on record.
7. Subsequently, on 22.10.2021, i.e., after a
lapse of nearly one and half years and without filing
any objection to Ext P4, the petitioner has filed Ext P5
application, to depute the Advocate Commissioner for
elucidating certain additional materials. The same was
opposed by the respondents, inter-alia, contending that
the petitioner's intention is to protract the suit.
8. The court below, after adverting to Exts P5
O.P.(C)No.154/2023
and P6, has dismissed Ext P5 application on the finding
that all matters that have been sought to be elucidated
in Ext P5 application are already ascertained by the
Advocate Commissioner in Ext P4 report and,
therefore, there is no necessity to remit the
commission report.
9. The suit is nearly a decade old and is now
ripe for trial.
10. It is at this belated stage, that the petitioner
has filed Ext P5 application. The court below has
found that there is no necessity or need to remit the
commission report as sought for in Ext P5 application
because all the matters sought for in Ext P5 application
is already on record.
11. I find sufficient force in the contention of the
respondents that the petitioner's intention is to
protract the suit. Moreover, as the petitioner has not
filed any objection to Ext P4 report and it is found that
O.P.(C)No.154/2023
matters sought to be elucidated are already on record,
I do not find any error in the impugned order
warranting interference by this Court under Article
227 of the Constitution of India.
12. Nonetheless, if the court below finds, after
the conclusion of trial, especially the evidence of the
Advocate Commissioner, any inadequacy or
discrepancies in Ext P4 report and plan, then the court
below would be at liberty to set aside/remit Ext P4
report and plan.
With the above observation, the original petition is
dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/27.01.23 //True copy//
P.A.To Judge
O.P.(C)No.154/2023
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO. 37 OF
2013 BEFORE HON'BLE MUNSIFF COURT VARKALA
EXHIBIT2 A TRUE COPY OF THE COUNTER CLAIM PREFERRED
OF 2013 BEFORE HON'BLE MUNSIFF COURT
VARKALA
EXHIBIT P3 A TRUE COPY OF REPLICATION FILED BY COUNTER
CLAIM DEFENDANTS IN O.S. NO. 37 OF 2013
BEFORE HON'BLE MUNSIFF COURT, VARKALA
EXHIBIT P4 A TRUE COPY OF THE COMMISSION REPORT AND
SKETCH IN COUNTER CLAIM IN O.S. NO. 37 OF
2013 BEFORE HON'BLE MUNSIFF COURT VARKALA
DATED 26.06.2020
EXHIBIT P5 A TRUE COPY OF THE COMMISSION APPLICATION,
I.A NO. 1 OF 2021 IN COUNTER CLAIM IN O.S.
NO. 37 OF 2013 BEFORE HON'BLE MUNSIFF COURT
VARKALA
EXHIBIT P6 A TRUE COPY OF OBJECTION PREFERRED BY
COUNTER CLAIM DEFENDANTS IN I.A. NO. 1 OF
2021 IN COUNTER CLAIM IN O.S. NO. 37 OF
2013 BEFORE HON'BLE MUNSIFF COURT VARKALA
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED, 10.01.2022
IN I.A. NO. 1 OF 2021 IN O.S. NO. 37 OF
2013 BEFORE HON'BLE MUNSIFF COURT VARKALA
RESPONDENTS' EXHIBITS: NIL
