Kerala High Court
Narayani M.V vs Kappadan Balan on 6 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
OP(C) NO. 163 OF 2024
IN O.S. NO.209/2015 OF MUNSIFF'S COURT, THALIPARAMBA
PETITIONER(S)/PETITIONER:
1 NARAYANI M.V.,
AGED 83 YEARS, W/O LATE MEETHALE VEETTIL KUNHAPPA
NAIR RESIDING AT MEETHALE VEETTIL POST MORAZHA
VIA MOTTAMMAL, KANNUR, PIN - 670331.
2 RADHA M.V.,
AGED 60 YEARS, D/O LATE MEETHALE VEETTIL KUNHAPPA
NAIR AGED 60 YEARS, RESIDING AT MEETHALE VEETTIL
POST MORAZHA VIA MOTTAMMAL, KANNUR, PIN - 670331.
3 SARASWATHI M.V.,
AGED 57 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
4 SHYAMALA,
AGED 55 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
5 OMANA M.V.,
AGED 53 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
6 GEETHA DEVI,
AGED 49 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
7 MANOHARAN M.V.,
AGED 47 YEARS, S/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
8 SATHYANESAN,
AGED 47 YEARS, S/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
O.P.(C) No.163 of 2024
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9 PRIYA M.V.,
AGED 43 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
BY ADVS.
DAISY A.PHILIPOSE
HARIDAS THAIKKANDY
ARJUN P.V.
RESPONDENT(S)/RESPONDENTS:
1 KAPPADAN BALAN,
THE PRESIDENT THIYYA SAMUDAYA SMASANA COMMITTEE,
KAPPADAN, IKYAL KULAM, P.O MORAZHA VIA MOTTAMMAL,
KANNUR, PIN - 670331.
2 THE VILLAGE OFFICER,
MORAZHA VILLAGE OFFICE AMSOM DESOM MORAZHA P.O.,
KANNUR DISTRICT, PIN - 670331.
3 SASIDHARAN M.V.,
AGED 43 YEARS, S/O LATE MEETHALEVEETTIL KUNHAPPA
NAIR D.P WORLD, JEBBAL AL-E, P.O.BOX NO. 17700,
DUBAI, UAE., PIN - 17700.
4 K.V MURALEEDHARAN,
S/O GOPALAN RESIDING AT MORAZHAAMSOM AND DESOM
POST MORAZHA, THALIPARABA, KANNUR, PIN - 670331.
BY ADV R SURENDRAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No.163 of 2024
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J U D G M E N T
Dated this the 06th day of February, 2024
Petitioners herein are the plaintiffs in
O.S.No.209/2015, pending before the Munsiff's
Court, Thaliparamba. Petitioners are aggrieved by
Ext.P4 order, which rejected an application to
remit the Commissioner's report and also to note
certain additional points occasioned by the alleged
constructions made by the respondents herein in
the plaint schedule property.
2. Heard the learned counsel for the petitioners
and the respondents.
3. Learned counsel for the petitioners would
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submit that, though Ext.P2 application would appear
to seek a remit of the existing Commissioner's
report and plan, all what the petitioners actually
want is to ascertain the additional constructions
made by the respondents herein in the plaint
schedule property on 30th and 31st of October, 2023.
Learned counsel would submit that the facts
pertaining to such additional constructions made by
the defendants in the suit, pendente lite, are
relevant, especially when the relief sought for
includes one for mandatory injunction as well.
4. This application was seriously opposed by the
learned counsel for the respondents, pointing out
that the entire evidence has been recorded. It was
also submitted that if the additional points
required to be noted are permitted, the same may
also necessitate an amendment of the plaint, which
would delay the disposal of the suit.
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5. Learned Government Pleader appears for the
second respondent and would leave the matter for
appropriate decision by this Court.
6. Having heard the learned counsel appearing for
the respective parties, this Court is of the
opinion that the additional constructions alleged
to have been made on the dates specified,
30.10.2023 and 31.10.2023, by the defendants in the
schedule property are liable to be brought to the
notice of the court, for which purpose, the instant
Ext.P2 commission application has to be allowed,
limiting its scope specifically to the matter above
referred. This Court finds little merit in the
submission made by the learned counsel for the
respondents that the entire evidence has been
recorded and if Ext.P2 application is allowed, the
same may, ultimately, necessitate amendment of the
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plaint, etc. Going by the allegations in the
affidavit in support of the petition, the
defendants/respondents have highhandedly trespassed
into the plaint schedule property and had made some
additional constructions therein, when the suit was
pending and when the same was scheduled for trial.
The allegations, if true, is a matter of serious
concern, since it alters the status-quo with
respect to the plaint schedule property, albeit in
the absence of an interim order of prohibitory
injunction. If that be so, the respondents cannot
be heard to submit that the additional aspects
sought to be noted need not be brought to the
notice of the court, or for that matter, the same
may delay the disposal of the suit. This Court
notice that the suit is one preferred at the
instance of the petitioners herein.
7. For the reasons afore referred, Ext.P2
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application, insofar as it seeks to ascertain the
alleged constructions made in the plaint schedule
property after the last visit of the Commissioner
on the property on 18.03.2016, is liable to be
reported, for which purpose, Ext.P2 will stand
allowed. It is clarified that the above referred
aspect alone is required to be noted and reported.
Upon filing such report, if the evidence has to be
reopened to prove the additional aspects reported,
the same shall be done. It will be open for the
learned Munsiff to take a call with respect to the
application for amendment, if any, preferred by the
plaintiff and also any consequent pleadings
required on behalf of the defendants. After
complying with the above procedural formalities,
the court will proceed with the trial and will
dispose of the matter expeditiously, since the suit
is of the year 2015.
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8. As requested by the learned counsel for the
respondents, the Commissioner shall visit the
property without any further delay, at any rate,
within a period of fifteen days from the date of
receipt of a copy of this judgment and shall prefer
the report within five days therefrom.
The Original Petition is disposed of as above.
Sd/-
C. JAYACHANDRAN
JUDGE
Skk//06.01.2024
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APPENDIX OF OP(C) NO.163/2024
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF PLAINT IN O.S NO. 209 OF
2015 ON THE FILE OF THE HONORABLE
MUNSIFF'S COURT THALIPARAMBA
EXHIBIT P2 A TRUE COPY OF APPLICATION NUMBERED AS
I.A. NO. 11 OF 2023 IN O.S NO. 209 OF
2015 ON THE FILE OF THE HONORABLE
MUNSIFF'S COURT THALIPARAMBA
EXHIBIT P3 A TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENT IN I.A. NO. 11 OF 2023 IN O.S
NO. 209 OF 2015 ON THE FILE OF THE
HONORABLE MUNSIFF'S COURT THALIPARAMBA
OF 2023 IN O.S NO. 209 OF 2015 ON THE
FILE OF THE HONORABLE MUNSIFF'S COURT
THALIPARAMBA
