Sumithra M.K vs Sugunan
2023 Latest Caselaw 6455 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                         OP(C) NO. 682 OF 2021
  AGAINST THE ORDER IN IA.NO.2/2021 IN OS 78/2017 OF ADDITIONAL
                        MUNSIFF COURT, ALAPPUZHA
PETITIONER/PLAINTIFF:

          SUMITHRA M.K.,
          AGED 57 YEARS,
          W/O.V.T. PURUSHAN, SUMI BHAVANAM, THIRUMALA WARD,
          CHUNGOM, IRON BRIDGE P.O., PALLATHURUTHI, MULLACAKAL
          VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA, PIN 688 011
          BY ADVS.
          M.V.THAMBAN
          SRI.R.REJI
          SMT.THARA THAMBAN
          SRI.B.BIPIN
          SRI.ARUN BOSE


RESPONDENTS/DEFENDANTS 1 & 2:

    1     SUGUNAN,
          AGED 80 YEARS, S/O.M.P.KRISHNAN, MANNUSSERIL, THIRUMALA
          WARD, CHUNGOM, IRON BRIDGE P.O., PALLATHURUTHI,
          MULLACKAL VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA, PIN
          688 011
    2     SHARATH DHARA,
          AGED 35 YEARS, S/O.SUGUNAN, MANNUSERIL, THIRUMALA WARD,
          CHUNGOM, IRON BRIDGE P.O., PALLATHURUTHI, MULLACKAL
          VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA PIN 688 011


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 682 OF 2021

                                     2


                                  JUDGMENT

Ext.P12 order is under challenge on the reason

that the suit instituted by the plaintiff is one for

injunction simplicitor, wherein the defendants raised a

counter claim for a counter injunction. Both the suit

and the counter claim are for injunction simplicitor,

wherein there is no scope for issuing a survey

commission. It is for that purpose, an application was

submitted by the defendants for appointment of a survey

commission to measure out and locate the property. In

fact, since it is for injunction simplicitor, no survey

commission can be issued. Ext.P12 order hence suffers

defects in the exercise of jurisdiction and is liable

to be rectified under Article 227 of the Constitution

and the order will stand set aside. The commission

application will stand dismissed.

The O.P.(C) will stand allowed accordingly.

Sd/-

P.SOMARAJAN JUDGE msp OP(C) NO. 682 OF 2021

APPENDIX OF OP(C) 682/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.78/17 ON THE FILES OF THE HON'BLE ADDITIONAL MUNSIFF COURT, ALAPPUZHA.

EXHIBIT P2 TRUE COPY OF THE CERTIFICATE FROM VILLAGE OFFICE, MULLACKAL VILLAGE OFFICE DATED 16.2.2009 EXHIBIT P3 TRUE COPY OF THE CERTIFICATE FROM AGRICULTURE OFFICE, KRISHI BHAVAN, ALAPPUZHA DATED 21.12.2016 EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, KARUVELI, PADASEKHARA NELLULPATHAKA SAMITHI, REGISTER NO.798, ALAPPUZHA.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 29.5.2017 IN I.A.NO.282/17 EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH A COUNTER CLAIM EXHIBIT P7 TRUE COPY OF THE ORDER DATED 29.5.2017 IN I.A.NO.1087/2017 IN O.S.NO.78/17. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 22.6.2020 IN C.M.A. NO.42/17 EXHIBIT P9 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT EXHIBIT P10 TRUE COPY OF I.A.NO.2/2021 IN O.S.NO.78/17 EXHIBIT P11 TRUE COPY OF THE OBJECTION IN I.A.NO.2/21 IN O.S.NO.78/17 EXHIBIT P12 TRUE COPY OF THE ORDER DATED 9.2.2021 IN I.A.NO.2/2021 IN O.S.NO.78/17