Navas vs Abdul Jaleel
2024 Latest Caselaw 5932 Ker

Citation : 2024 Latest Caselaw 5932 Ker
Judgement Date : 23 February, 2024

Kerala High Court

Navas vs Abdul Jaleel on 23 February, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
    FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
                         OP(C) NO. 295 OF 2024
   AGAINST THE ORDER/JUDGMENT OS 190/2020 OF MUNSIFF MAGISTRATE
                             COURT,PONNANI
PETITIONER/APPLICANTS IN I.A./DEFENDATNS 3 TO 5 IN SUIT:

    1        NAVAS
             AGED 42 YEARS
             S/O VADASSERI ALI, RESIDING AT PURANGU AMSOM AND DESOM,
             PONNANI TALUK, PURANGU P.O., MALAPPURAM, PIN - 679584
    2        NASAR
             AGED 41 YEARS
             S/O VADASSERI ALI RESIDING AT PURANGU AMSOM AND DESOM,
             PONNANI TALUK, PURANGU P.O., MALAPPURAM, PIN - 679584
    3        FOUSIYA
             AGED 39 YEARS
             W/O FIROZ RESIDING AT PURANGU AMSOM AND DESOM, PONNANI
             TALUK, PURANGU P.O., MALAPPURAM, PIN - 679584
             BY ADV NIRMAL V NAIR


RESPONDENTS/1ST RESPONDENT IN IA/PLAINTIFF AND DEFENDANTS 1,2 AND
6 IN SUIT:

    1        ABDUL JALEEL
             AGED 55 YEARS
             S/O ALI, MANAMAL HOUSE, PONNANI TALUK, PURANGU AMSOM,
             PURANGU P.O., MALAPPURAM, PIN - 679584
    2        VADASSERI ALI
             AGED 73 YEARS
             S/O BAPPU, RESIDING AT MARAMUTTAM, PURANGU AMSOM AND
             DESOM, PONNANI TALUK, PURANGU P.O., MALAPPURAM, PIN -
             679584
    3        VADASSERI GAFOOR
             AGED 48 YEARS
             S/O ALI, RESIDING AT MARAMUTTAM, PURANGU AMSOM AND
             DESOM, PONNANI TALUK, PURANGU P.O., MALAPPURAM, PIN -
             679584
    4        VADASSERI ABOOBACKER
             AGED 68 YEARS
             S/O BAPPU, RESIDING AT MARAMUTTAM, PURANGU AMSOM AND
             DESOM, PONNANI TALUK, PURANGU P.O., MALAPPURAM, PIN -
             679584
 O.P.(C).No. 295 of 2024
                                    ..2..

            BY ADVS.
            Alex M Scaria
            SARITHA THOMAS(K/158/2010)
            SAHL ABDUL KADER(K/2210/2021)
            AKSHARA RAJU(K/4111/2023)


     THIS     OP   (CIVIL)    HAVING    COME   UP    FOR    ADMISSION   ON
23.02.2024,    THE    COURT    ON    THE    SAME    DAY    DELIVERED    THE
FOLLOWING:
 O.P.(C).No. 295 of 2024
                                    ..3..



                           J U D G M E N T

Dated this the 23rd day of February, 2024

Petitioners herein are defendants 3 to 5 in

O.S.No.190/2020 pending before the Munsiff Court,

Ponnani. An application preferred by the

petitioners for issuance of Commission was

dismissed by the learned Munsiff, vide Ext.P7

order, holding that the application was belated

and that the precise pleadings with respect to the

nature of the easement claimed has not been

incorporated in the written statement.

2. Having heard the learned counsel for the

respective parties, this Court notice that the

Commission sought to be taken out was essentially

to note the existence of a pathway through the

plaint schedule properties. The right of the

defendants over the pathway, which passes through

the plaint scheduled properties, has been

specifically pleaded in paragraph no.7 of the

..4..

written statement. It is pleaded that the

defendants have been using the said pathway for

the past more than 60 years, as of right. The lie

of the pathway, the place where it enters the

plaintiffs property and the place to which it

leads to, are all pleaded in paragraph no.7. It is

in substantiation of the said plea that Ext.P5

application was preferred for issuance of a

Commission. The solitary defect/short coming,

which this Court notice, is with respect to the

delay in preferring the application. This Court

further notice that, the earlier Commission taken

out in the suit was an ex-parte Commission, which

was taken at the instance of the plaintiff, when

they moved the suit. That is all the more a reason

to allow Ext.P5 application.

4. In the circumstances, Ext.P7 order cannot be

sustained and the same is hereby set aside.

Ext.P5 will stand allowed, subject to the

condition that the petitioner pays a sum of

..5..

Rs.5,000/- (rupees five thousand only) to the 1st

respondent herein, towards the cost, within a

period of two weeks from today(24.02.2024). Upon

reporting payment of cost as afore-referred, the

learned Munsiff will depute the Commissioner to

note the points enumerated in Ext.P5. Once the

report is received, the suit shall be proceeded

with, expeditiously.

The Original Petition is disposed of, as above.

Sd/-

C. JAYACHANDRAN JUDGE TR

..6..

APPENDIX OF OP(C) 295/2024

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PLAINT DATED 1-12- 2020 IN O.S. 190/2020 ON THE FILES OF THE MUNSIFF COURT, PONNANI Exhibit P2 A TRUE COPY OF THE JOINT WRITTEN STATEMENT DATED 20-12-2021 IN O.S. NO. 190/2020 ON THE FILES OF THE MUNSIF COURT, PONNANI Exhibit P3 A TRUE COPY OF I.A. NO. 4/2020 DATED 1- 12-2020 IN O.S. NO. 190/2020 ON THE FILES OF THE MUNSIF COURT, PONNANI Exhibit P4 A TRUE COPY OF THE REPORT OF LOCAL INSPECTION AND ROUGH SKETCH DATED 4-1- 2021 SUBMITTED BY THE ADVOCATE COMMISSIONER Exhibit P5 A TRUE COPY OF I.A. NO. 3/2024 DATED 15-1-2024 IN O.S. NO. 190/2020 ON THE FILES OF THE MUNSIF COURT, PONNANI Exhibit P6 A TRUE COPY OF THE OBJECTION IN I.A. NO. 3/2024 DATED 17-1-2024 IN O.S. NO. 190/2020 ON THE FILES OF THE MUNSIF COURT, PONNANI Exhibit P7 A TRUE COPY OF THE ORDER DATED 19-1- 2024 IN I.A. NO. 3/2024 IN O.S. NO. 190/2020 ON THE FILES OF THE MUNSIF COURT, PONNANI