Kerala High Court
Palliyalil Ummer vs Mohammed Alias Bava on 24 October, 2024
O.P(C). No.26 of 2024 1
2024:KER:79279
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
OP(C) NO. 26 OF 2024
AGAINST THE ORDER DATED 16.09.2023 IN IA 1/2023 IN OS
NO.343 OF 2012 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, TIRUR
PETITIONER/PETITIONER/PLAINTIFF:
PALLIYALIL UMMER, AGED 57 YEARS
S/O PALLIYATIL CHERIYAMU MUSLIAR, MUTHOOR AMIOM,
MELMURI DESOM KALADI P.O, PONNANI TALUK,
MALAPPURAM DISTRICT,, PIN - 679582
BY ADVS.
T.A.SHAIN
RADHAKRISHNA PILLAI.G.
RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 8:
1 MOHAMMED ALIAS BAVA
S/O KUNHAMMED HAJI, MUTHOOR AMSOM MELMURI DESOM,
KALADI P.O, PONNANI TALUK MALAPPURAM DISTRICT,
PIN - 679582
*2 NAFEESA, AGED 74 YEARS (DIED)
W/O PALLIYALIL KUNHEETHU MUTHOOR AMSOM,
MELMURI DESOM, KALADI P.O, (DI PONNANI TALUK,
MALAPPURAM DISTRICT, PIN - 679582
*RESPONDENTS 3 TO 8 ARE RECORDED AS THE LEGAL HEIRS OF
THE DECEASED 2ND RESPONDENT VIDE ORDER DTD 21.10.2024
ON MEMO DTD 8.10.24)
3 BASHEER, AGED 52 YEARS
S/O PALLIYALIL KUNHEETHU PALLIYALIL HOUSE,
KUTTIPURAM AMSOM, KUTTIPPURAM DESOM , KUTTIPPURAM P.O,
TIRUR TALUK, MALAPPURAM,, PIN - 673571
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4 RASHEED, AGED 59 YEARS
S/O PALLIYALIL KUNHEETHU PALLIYALIL HOUSE,
KUTTIPURAM AMSOM, KUTTIPPURAM DESOM , KUTTIPPURAM P.O,
TIRUR TALUK, MALAPPURAM,, PIN - 679571
5 ABDUSAMED, AGED 52 YEARS
S/O PALLIYALIL KUNHEETHU PALLIYALIL HOUSE,
KUTTIPURAM AMSOM, KUTTIPPURAM DESOM , KUTTIPPURAM P.O,
TIRUR TALUK, MALAPPURAM,, PIN - 679571
6 SHAHUL HAMEED, AGED 50 YEARS
S/O PALLIYALIL KUNHEETHU PALLIYALIL HOUSE,
KUTTIPURAM AMSOM, KUTTIPPURAM DESOM , KUTTIPPURAM P.O,
TIRUR TALUK, MALAPPURAM,, PIN - 679571
7 SIDDIQUE, AGED 47 YEARS
S/O PALLIYALIL KUNHEETHU PALLIYALIL HOUSE,
KUTTIPURAM AMSOM, KUTTIPPURAM DESOM , KUTTIPPURAM P.O,
TIRUR TALUK, MALAPPURAM,, PIN - 679571
8 MOHAMMED MUSTHAFA, AGED 46 YEARS
S/O PALLIYALIL KUNHEETHU PALLIYALIL HOUSE,
KUTTIPURAM AMSOM, KUTTIPPURAM DESOM , KUTTIPPURAM P.O,
TIRUR TALUK, MALAPPURAM,, PIN - 679571
R1 BY ADVS. Jamsheed Hafiz
T.S.SREEKUTTY(K/556/2016)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.10.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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VIJU ABRAHAM, J.
.................................................................
O.P(C). No.26 of 2024
.................................................................
Dated this the 24th day of October, 2024
JUDGMENT
The above original petition is filed seeking to set aside Ext.P8
order whereby the request of the petitioner for examination of the property
by an experienced commission has been declined.
2. Petitioner is the plaintiff in the suit for prohibitory injunction. In the
present case a commission was taken out and Ext.P3 report was filed.
Aggrieved by Ext.P3 report the petitioner has sought for remitting the same
and Ext.P4 second commission report was submitted. Still not satisfied with
the same, another application was filed for issuance of a fresh commission
which was allowed and Ext.P5 commission report and sketch was
submitted. The case of the petitioner is that in none of these reports actual
factual details have not been ascertained. Thereupon the petitioner has
filed Ext.P6 application to appoint an experienced commission. Ext.P7
objection was filed and after hearing both sides by Ext.P8 order request of
the petitioner was declined.
3. Learned counsel for the 1st respondent would submit that there is
absolutely no bonafides on the part of the petitioner, who have repeatedly
asked for commission reports until a report which suits to his contention is
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obtained and that the present case is for a simple prohibitory injunction to
which the commission reports now obtained are sufficient for a just decision
of the suit.
4. I have perused Ext.P8 order and found that the court has entered
a finding that the first commission report itself was sufficient for determining
the issues involved in the suit, but on the request of the petitioner two other
commission reports were subsequently obtained by the court. Now the
request of the petitioner is for appointment of an experienced commission
for verifying certain details sought for by the petitioner in the application.
The court has found that a boundary which is not in existence in the site
cannot be reported by the commissioner and surveyor even if they are sent
time and again. The court has also found that the request made by the
petitioner is only to protract the suit which is almost a decade old. It is made
clear that it is well within the power of the court to remit the commission
report if at any stage of the suit the court finds that a fresh commission
report is required for a just and proper disposal of the suit. In view of the
above, I find no reason to interfere with Ext.P8 order.
Original Petition is accordingly dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
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APPENDIX OF OP(C) 26/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PLAINT IN O.S NO:
343/2012 DATED 25/09/2012 BEFORE THE SUB
COURT TIRUR.
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT
DATED 31/12/2013 FILED BY THE
DEFENDANT/RESPONDENT NO:1 BEFORE THE SUB
COURT TIRUR
Exhibit P3 A TRUE COPY OF THE COMMISSION REPORT
DATED 09/10/2012.
Exhibit P3(a) A TRUE COPY OF THE SKETCH
Exhibit P4 A TRUE COPY OF THE ADVOCATE COMMISSIONER
REPORT DATED 22/03/2022.
Exhibit P5 A TRUE COPY OF THE ADVOCATE COMMISSION
REPORT DATED 10/04/2023.
Exhibit P5(a) A TRUE COPY OF THE SKETCH.
Exhibit P6 A TRUE COPY OF THE PETITION NUMBERED AS
IA NO: 1/2023 DATED 30/06/2023.
Exhibit P7 A TRUE COPY OF OBJECTION DATED
20/07/2023 FILED BY THE 1ST RESPONDENT
Exhibit P8 A TRUE COPY OF THE ORDER DATED
16/09/2023 IN IA NO:1/2023 IN O S NO:
343/2012 BEFORE THE SUBORDINATE JUDGE OF
TIRUR.
