Rari @ Ratheesh vs T.A.Jaimson
2023 Latest Caselaw 6777 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     TUESDAY, THE 20th DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                      OP(C) NO. 1206 OF 2023
AGAINST THE ORDER DATED 21.02.2023 IN I.A.No.3/2021 IN OS 360/2019
                     OF MUNSIFF COURT, ALUVA
PETITIONERS/PETITIONERS/DEFENDANTS:

    1     RARI @ RATHEESH, AGED 43 YEARS, S/o CHANDRAN,
          MUNCHOTTIL HOUSE, V.K.COLONY P.O.,
          KALAMASSERY MUNICIPALITY, PIN - 682021

    2     M.K.MANIAN, AGED 64 YEARS, S/o KATHIRAN,
          KAKKAMPURATH HOUSE, EDATHALA PANCHAYATH,
          THEVACHAL, V.K.COLONY P.O., PIN - 682021

    3     VIDHU T.G, AGED 50 YEARS, S/o GOVINDHAN NAIR,
          THEVACHAL HOUSE, V.K.COLONY P.O., WRONGLY SHOWN AS
          VIDHU G.NAIR, MUKKOTTIL HOUSE, V.K.COLONY, EDATHALA
          PANCHAYATH, THEVACHAL, V.K.COLONY P.O, PIN - 682021

    4     THE TEMPLE ADMINISTRATIVE COMMITTEE,
          KERALA KSHETRASAMRAKSHNA SAMITHI, MUKKOTIL TEMPLE,
          THEVAKKAL, COCHIN - 21 AND AFFILIATED UNIT OF THE
          KERALA KSHETRA SAMRAKSHNA SAMITHI, KOZHIKODE,
          REG.NO.152/77, REPRESENTED ITS DULY AUTHORIZED MEMBER
          G.S. VINOD, AGED 50, S/o SIVASANKARA PILLAI,
          GEETHALAYAN, V.K.COLONY P.O., THEVAKKAL,
          COCHIN, PIN - 682021

          BY ADVS. DINESH R.SHENOY
                   T.S.SAUMYA
                   SUCHITHRA K.R.
                   P.ROHIT PREMANANDAN SHENOY
                   SILESH S. PRABHU
                   MANOJ.R
                   HELAN PAULOSE


RESPONDENT/RESPONDENT/PLAINTIFF:
           T.A.JAIMSON, S/o T.V.ANTONY, THAIPADATHU HOUSE,
           LEEMANIVAS, CHERUMATTAPUZHAKARA, VAZHAKKALA VILLAGE,
           THRIKAKKARA P.O., ERNAKULUM., PIN - 682021


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) No.1206 of 2023                 2




                               JUDGMENT

The challenge in this original petition is against

Ext.P8 order declining to remit back the Commissioner's

report prepared after surveying and measuring out the

property. It is at the instance of the plaintiff, the

survey commission was let out. The legal position is very

much settled by a Division Bench of this court in Francis

Assissi v. Sr.Breesiya [2017 (1) KLT 1041] and as such

there is no scope for remitting back the Commissioner's

report either under Rule 9 or 10 of Order XXVI CPC,

though it is permissible under Rule 14 of that Order.

Necessarily, the defendants are at liberty to apply for a

second commission to measure out the property and to

prepare a fresh plan in accordance with their

requirement. Without prejudice to the said right of

defendants/petitioners, the present Original Petition

will stand dismissed. It is made clear that the

observations made by the trial court under Ext.P8 will

not have any binding nature when the matter is taken up

for final hearing and disposal.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

APPENDIX OF OP(C) 1206/2023

PETITIONERS' EXHIBITS

Exhibit P1 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.360/2019, MUNSIFF'S COURT, ALUVA.

Exhibit P2 TRUE PHOTOCOPY OF I.A.NO.2022/2019 IN O.S.NO.360/2019, MUNSIFF'S COURT, ALUVA.

Exhibit P3 TRUE PHOTOCOPY OF REPORT DATED 1/2/2021 TOGETHER WITH SURVEY SKETCH FILED IN I.A.NO.2022/2019 IN OS NO.360/2019, MUNSIFF'S COURT, ALUVA.

Exhibit P4 TRUE PHOTOCOPY OF I.A.NO.3/2021 IN OS NO.360/2019, MUNSIFF'S COURT, ALUVA.

Exhibit P5 TRUE PHOTOCOPY OF THE OBJECTION DATED 18/2/2021 FILED IN EXT.P6 APPLICATION.

Exhibit P6 TRUE PHOTOCOPY OF THE AMENDED WRITTEN STATEMENT DATED 15/2/2022 FILED BY THE PETITIONERS IN O.S.NO.360/2019, MUNSIFF'S COURT, ALUVA.

Exhibit P7 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT TO COUNTER CLAIM DATED 1/11/2022 FILED BY THE RESPONDENT/PLAINTIFF IN OS.NO.360/2019, MUNSIFF COURT, ALUVA.

Exhibit P8 TRUE PHOTOCOPY OF ORDER DATED 21/2/2023 IN I.A.NO.3/2021 IN O.S.NO.360/2019, MUNSIFF'S COURT, ALUVA.

// TRUE COPY //

P.A. TO JUDGE