Jeeja T vs Kannur District Co-Operative ...
2023 Latest Caselaw 9441 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  MONDAY, THE 4TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945
                       OP(C) NO. 1817 OF 2023
      AGAINST THE ORDER IN OS 61/2014 OF MUNSIFF COURT,
                              THALIPARAMBA
PETITIONER:


             JEEJA T., AGED 47 YEARS, D/O. THAMPAN NAMBIAR,
             PATTUVAM AMSOM DESOM, TALIPARAMBA TALUK, PATTUVAM
             P.O; KANNUR DISTRICT, PIN - 670143

             MATHEW KURIAKOSE
             G.GIREESH
             J.KRISHNAKUMAR (ADOOR)


RESPONDENT:


             KANNUR DISTRICT CO-OPERATIVE RUBBER & AGRICULTURAL
             MARKETING SOCIETY LTD.NO. C 303, REPRESENTED BY
             SECRETARY IN CHARGE, SHOUKKATH ALI, AGED 55 YEARS,
             S/O. MUHAMMED KUNHI, PANNIYOOR AMSOM, POOMANGALAM
             DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN -
             670702




     THIS     OP   (CIVIL)    HAVING   COME   UP    FOR    ADMISSION   ON
04.09.2023,     THE   COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 1817 OF 2023
                                2



                            JUDGMENT

The petitioner - who is the defendant in a suit filed by

the Kannur District Co-operative Rubber & Agricultural

Marketing Society (Plaintiff), concededly under Section 108 of

the Transfer of Property Act - has approached this Court

through this original petition, impugning Ext.P5 order,

whereby, the learned Munsiff's Court, Taliparamba, has

rejected her application seeking appointment of an Advocate

Commissioner to ascertain the suitability of the building in

question, for being used by the plaintiff as a Supermarket.

2. Sri.Mathew Kuriakose - learned counsel for the

petitioner/defendant, vehemently argued that since the

plaintiff has a specific case that they intend to use the

building in question as a Supermarket, it was up to them to

prove it; and that since they have failed to do so, her client

approached the learned Trial Court for the appointment of an

Advocate Commissioner. He argued that the rejection of the

said application, through Ext.P5 order, is illegal and unlawful;

and thus prayed that it be set aside.

3. I am afraid that I cannot find favour with the afore

submissions of the petitioner, as made by her learned counsel,

because, as rightly noticed by the learned Trial Court, the suit OP(C) NO. 1817 OF 2023

is one filed under Section 108 of the Transfer of Property Act

and not under the Kerala Buildings (Lease and Rent Control)

Act. When the plaintiff seeks termination of tenancy, it

normally, would not be necessary for them to prove for what

purpose they intend to use the building, after it is so ordered,

should the suit be allowed. This has been so correctly

recorded by the learned Trial Court in the impugned order;

and I see no reason to interfere with it in any manner.

4. This is more so for the adscititious reason that even if

the petitioner is to establish that the subject matter building

is not suitable for being used as a Supermarket by the

plaintiff, it would be of little relevance and she will have to

sustain her defense within the ambit of the suit - which, as I

have already said above, has been filed admittedly under

Section 108 of the Transfer of Property Act.

Reserving all such liberties to the petitioner, this

Original Petition is dismissed.

Sd/- DEVAN RAMACHANDRAN JUDGE stu OP(C) NO. 1817 OF 2023

APPENDIX OF OP(C) 1817/2023 PETITIONER EXHIBITS

Exhibit P 1 TRUE COPY OF THE PLAINT IN O.S. NO.

61/2014 ON THE FILES OF THE MUNSIFF'S COURT, TALIPARAMBA

Exhibit P 2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/ DEFENDANT IN O.S. NO. 61/2014 ON THE FILES OF THE MUNSIFF'S COURT, TALIPARAMBA

Exhibit P 3 TRUE COPY OF THE AFFIDAVIT AND APPLICATION SUBMITTED BY THE PETITIONER, I.A. NO. 1/2023 IN O.S. NO. 61/2014 ON THE FILES OF THE MUNSIFF'S COURT TALIPARAMBA

Exhibit P 4 TRUE COPY OF THE COUNTER STATEMENT SUBMITTED BY THE RESPONDENT/PLAINTIFF IN I.A. NO. 1/2023 IN O.S. NO. 61/2014 ON THE FILES OF THE MUNSIFF'S COURT TALIPARAMBA

Exhibit P 5 TRUE COPY OF THE ORDER DATED 12.04.2023 IN I.A. NO. 1/2023 IN O.S. NO. 61/2014 ON THE FILES OF THE MUNSIFF'S COURT TALIPARAMBA