Shahida Basheer vs Varghese
2023 Latest Caselaw 3175 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
     THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                      OP(C) NO. 293 OF 2023
     I.A NO.2608/2019 IN 1725/2016 IN OS 236/2015 OF MUNSIFF
                             COURT,ALUVA
PETITIONER/PETITIONER/DEFENDANT:

          SHAHIDA BASHEER
          AGED 57 YEARS
          W/O. BASHEER,AATTACHIRA HOUSE, THOTTAKKATTUKARA,
          ALUVA WEST VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT,
          PIN - 683101

          BY ADVS.
          BENOY K.KADAVAN
          SHYLESH KRISHNAN
          LAYA GEORGE



RESPONDENT/RESPONDENT/PLAINTIFF:

          VARGHESE
          AGED 61 YEARS
          S/O KOCHU DEVASSYA,GOPURATHINKAL HOUSE, VALIYAVEETTIL
          HOUSE, THOTTAKKATTUKARA, ALUVA WEST VILLAGE,
          ALUVA ,ERNAKULAM DISTRICT, PIN - 683101

          BY ADVS.
          PREMACHANDRA PRABHU S.B.
          K.B.RAJESH(K/2462/1999)




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 293 of 2023              2




              Dated this the 23rd day of March, 2023

                            JUDGMENT

The original petition is filed challenging Ext.P7

order passed in I.A. No.2608/2019 in I.A. No.1725/2016 in

O.S. No.236/2015 by the Court of the Munsiff, Aluva.

The petitioner is the defendant and the respondent is the

plaintiff in the suit.

2. The short relevant facts leading to Ext.P7 order,

in a nutshell, are:

(i) The respondent has filed the above suit against

the petitioner, for a decree of permanent prohibitory

injunction.

(ii) The petitioner has filed a written statement

along with a counter claim for a decree of recovery of

possession.

(iii) The petitioner filed I.A. No.1725/2016 (Ext.P3),

to appoint an Advocate Commissioner with the assistance

of a Taluk Surveyor to identify the boundaries of the

properties of both parties.

(iv) The court below allowed the application, but

the Advocate Commissioner has concealed the actual

facts in Ext.P4 commission report.

(v) Aggrieved by the Ext.P4 commission report, the

petitioner filed I.A. No.2608/2019 (Ext.P5), to remit the

commission report.

(vii) Pursuant to Ext.P5 application, the court below

directed the petitioner to take steps to issue summons to

the Surveyor. The petitioner took steps and Ext.P6

summons was issued to the Surveyor. But, the Surveyor

got transferred.

(viii) The court below, by the impugned Ext.P7

order, rejected Ext.P5 application on the ground that the

petitioner has not taken steps to issue summons to the

Surveyor.

(x) Ext.P7 is ex-facie illegal and erroneous. Hence,

the original petition.

3. Heard; Sri.Benoy K. Kadavan, the learned

counsel appearing for the petitioner and Sri.

S.B.Premachandra Prabhu, the learned counsel appearing

for the respondent.

4. The short point is, whether there is any illegality

in Ext.P7 order.

5. On an appreciation of the pleadings and

materials on record, it is quite evident that the petitioner

has filed Ext.P5 application to remit the commission

report.

6. Indisputably, on the steps taken by the petitioner,

the court below issued Ext.P6 summons to the Surveyor.

Thereafter, fresh summons was ordered to the said

Surveyor, as he was transferred from his earlier office.

7. The court below, by the impugned Ext.P7 order,

rejected Ext.P5 application on the ground that the

petitioner has not taken steps in time, to issue summons

to the Surveyor.

8. I find that the findings of the court below to be

erroneous for the reason that Ext.P6 summons clearly

shows that the petitioner had taken steps to issue

summons to the Surveyor. Moreover, the court below

should not have been hyper-technical in the matter of a

present nature. The court below ought to have granted

the petitioner one more opportunity to effect service of

notice on the Surveyor in order to substantiate his

contention that Ext.P4 commission report filed by the

Advocate Commissioner is erroneous. Thus, I am

inclined to exercise the power of superintendence of this

Court under Article 227 of the Constitution of India and

interfere with Ext.P7 order in order to grant the

petitioner one more opportunity to examine the Surveyor

and discredit Ext.P4commission report.

Resultantly, I allow the original petition as follows:-

(i) Ext.P7 order is set aside.

(ii) The court below shall afford the petitioner an

opportunity to take steps to issue summons to the

Surveyor in order to substantiate his contentions in

Ext.P5 application.

(iii) As the suit is of the year 2015, the court below

shall make every endeavour to consider and dispose of

the suit, in accordance with law and as expeditiously as

possible, at any rate within a period of three months after

the completion of pre-trial steps.

Sd/-

C.S.DIAS, JUDGE

rmm23/3/2023

APPENDIX OF OP(C) 293/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT FILED BEFORE THE HONOURABLE MUNSIFF COURT ALUVA IN O.S. 236/2015 DATED 9/4/2015

Exhibit P2 TRUE COPY OF COUNTER CLAIM FILED BY THE RESPONDENT BEFORE THE HONOURABLE MUNSIFF COURT , ALUVA DATED 21/10/2015 IN O.S NO. 236/2015

Exhibit P3 TRUE COPY OF THE INTERIM APPLICATION FILED BEFORE THE HONOURABLE MUNSIFF COURT ALUVA IN I.A.1725/2016 IN O.S NO 236/2015 FOR APPOINTMENT OF A COMMISSIONER DATED NIL

Exhibit P4 TRUE COPY OF THE COMMISSION REPORT FILED IN I.A.1725/2016 IN O.S NO 236/2015 BEFORE THE HONOURABLE MUNSIFF COURT ALUVA DATED 29/8/2019

Exhibit P5 TRUE COPY OF THE INTERIM APPLICATION FILED BY THE RESPONDENT BEFORE THE HONOURABLE MUNSIFF COURT IN I.A.

2608/2019 IN I.A NO. 1725/2016 IN O.S NO 236/2015 FOR THE REMISSION OF THE COMMISSION REPORT DATED 29/11/2019

Exhibit P6 TRUE COPY OF THE SUMMONS ISSUED BY THE HONOURABLE MUNSIFF COURT ALUVA TO THE SURVEY COMMISSIONER DATED 26/9/2022 IN O.S NO 236/2015

Exhibit P7 COPY OF THE ORDER ISSUED BY THE HONOURABLE MUNSIFF COURT ALUVA IN I.A.NO 2608/2019 IN I.A. 1725/2016 OF O.S. 236/2015 DATED 3/11/2022