Kerala High Court
K.Ajithakumari vs C.M.Mathew on 6 March, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:19255
O.P.(C)No.1672 of 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
OP(C) NO. 1672 OF 2020
AGAINST THE ORDER DATED 16.09.2020 IA No.5543/2018 IN
OS NO.1653 OF 2012 OF II ADDITIONAL MUNSIFF COURT,
THIRUVANANTHAPURAM
PETITIONER/COUNTER PETITIONER/PLAINTIFF:
K.AJITHAKUMARI,
AGED 65 YEARS,
W/O.DR.K.SOMAN, SUBHA,
VP2/458, VAZHAYILA, PEROORKADA P.O.,
THIRUVANANTHAPURAM-695005.
BY ADVS.
SRI.THOUFEEK AHAMED
SRI.P.A.AHAMMED
RESPONDENTS/PETITOINERS/DEFENDANTS:
1 C.M.MATHEW,
T.C.23/18, PNRA-20,
CHERUKARA,
PEACE VILLA,
TOLL JUNCTION,
KOWDIAR P.O.,
THIRUVANANTHAPURAM-695004.
2 SUNNY MATHEW,
S/O.C.M.MATHEW, T.C.23/18,
PNRA-20, CHERUKARA,
PEACE VILLA, TOLL JUNCTION,
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O.P.(C)No.1672 of 2020
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KOWDIAR P.O.,
THIRUVANANTHAPURAM-695004.
BY ADVS.
SRI.LIJU. M.P
SRI.K.SAJEESH KUMAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P.(C)No.1672 of 2020
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K.BABU, J.
-------------------------------------------
O.P.(C) No.1672 of 2020
---------------------------------------------
Dated this the 6th day of March, 2025
JUDGMENT
The challenge in this Original Petition is to Ext.P13
order whereby the Trial Court allowed an application to
issue a commission to obtain additional inputs.
2. The plaintiff instituted the Original Suit for
permanent prohibitory injunction, mandatory injunction and
other consequential reliefs against the defendants. The
defendants filed a written statement along with a counter
claim. In the counter claim, the defendants sought recovery
of possession of the counter claim B schedule property.
3. The Trial Court issued a commission. The
Commissioner and Surveyor measured the properties and
prepared Ext.P9 report, mahazar and plan.
4. The defendants filed I.A.No.5543 of 2018
contending that the measurements shown in the plan are
not correct and that there is no clarity in the identification of
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the properties. Therefore, the defendants sought for
collecting certain additional inputs by deputing the same
Commissioner and Surveyor.
5. The plaintiff resisted the application contending
that the measurements were prepared based on the
respective title deeds, tax receipts and survey plan.
6. The Trial Court considered the rival contentions
and came to a conclusion that additional inputs are required
for the just disposal of the matter. The relevant portion of
the order impugned is extracted below:-
"10. This application is filed by the petitioner on the
basis of the order in IA 7394/2014. In IA 7394/2014, my
learned predecessor dismissed the petition by allowing
the petitioner such liberty to taking another commission
at his own cost. On perusal of the earlier commission
report and plan, it is reported that there is no counter
claim B schedule property. It is also noted that the FLM
line is noted on the northern boundary of the plaint A
schedule property and boundaries of counter claim A
schedule property is noted as FGHJKLF line as shown in
the plan. The northern portion of the counter claim A
schedule property as shown as GHJKG is reported as part
of resurvey 6/5 and situated adjacent to resurvey 6/4. The
southern portion of counter claim property adjacent to the
counter petitioner/plaintiff is reported as FLM line. The
eastern and western boundaries of counter claim A
schedule properties are not reported. It is noted that the
report filed by the commissioner is vague and not clear.
The measurement of the properties are also not shown in
the report and plan. The report has also not disclosed the
details of survey and point fix for survey in the properties.
The report and plan has also not mentioned above the
southern and northern most boundary of plaint A and
counter claim A schedule properties."
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7. I have heard the learned counsel for the
petitioner and the learned counsel for the respondents.
8. The learned counsel for the petitioner submitted
that as two Commissioners visited the property and
prepared mahazar, plan etc., there is no requirement for
issuance of a further commission.
9. The learned counsel for the respondents
submitted that the plan produced by the Commissioner does
not contain the relevant data.
10. The Trial Court found that the eastern and
western boundaries of the counter claim A schedule
property are not noted in the plan. The Trial Court further
noted that the report filed by the Commissioner is vague.
11. The grievance of the petitioner is that the
attempt of the defendants was to obliterate the report and
the plan already submitted before the Court. The report
already filed by the Commissioner has become part of the
record as provided in Order XXVI Rule 10(2) of the CPC. It is
open for the Court to remit the commission report for
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further inquiry without setting aside the earlier commission
report. The Court can consider both reports and decide
accordingly at the time of trial. This question was
considered by a Division Bench of this Court in Laly Joseph
v. Francis [2023 (2) KLT 516]. In paragraph 10 of the
judgment this Court held thus:
"10. The present dilemma has arisen in the matters
relating to the appointment of the Commissioner for
local investigation. It is true that there is no specific
mention about setting aside the report under O.XXVI
R.10(3) of the Code, as it only refers to conduct
further 'enquiry'. There is no embargo, according to
us, for setting aside a commission report if the court is
totally dissatisfied with the commission report. It is
also open for the court to remit the commission report
for further inquiry, so also to appoint a fresh
commission without setting aside the earlier
commission report. The court can very well appreciate
both reports and decide accordingly at the time of the
trial....................."
12. Laly Joseph was followed by this Court in
Vijayakumari T.K. v. Subhash Mohan [2024 KHC
OnLine 785].
13. Having regard to the facts and circumstance of
the case, this Court is of the view that the impugned order is
is not affected with any illegality, irregularity or impropriety
warranting interference of this Court under Article 227 of
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the Constitution of India. Therefore, the order impugned
stands confirmed. The Suit is of the year 2012. The Trial
Court is directed to expedite the trial.
The Original Petition stands dismissed.
Sd/-
K.BABU
JUDGE
VPK
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APPENDIX OF OP(C) 1672/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF PLAINT IN O.S.NO.1653/12
DATED FILED BY PETITIONER BEFORE THE
IIND ADDITIONAL MUNSIFF COURT,
THIRUVANANTHAPURAM DATED 22.10.2012.
EXHIBIT P2 TRUE COPY OF THE REPORT DATED 29.10.2012
OF THE ADVOCATE COMMISSIONER IN
I.A.NO.7995/12 IN OS 1653/2012.
EXHIBIT P3 TRUE COPY OF SALE DEED NO.402/1993 OF
SUB REGISTRY OFFICE, SASTHAMANGALAM
DATED 06.02.1993.
EXHIBIT P4 TRUE COPY OF PHOTOGRAPH TAKEN FROM THE
PETITIONERS PROPERTY.
EXHIBIT P5 TRUE COPY OF PHOTOGRAPHS TAKEN FROM THE
RESPONDENTS PROPERTY.
EXHIBIT P6 TRUE COPY OF WRITTEN STATEMENT ALONG
WITH COUNTER CLAIM FILED BY RESPONDENTS
IN OS 1653/12 DATED 10.06.2013.
EXHIBIT P7 TRUE COPY OF WRITTEN STATEMENT ALONG
WITH COUNTER CLAIM FILED BY PETITIONER
IN OS 1653/12 DATED 03.09.2013.
EXHIBIT P8 TRUE COPY OF COMMISSION APPLICATION,
I.A.NO.2335/15 IN OS NO.1653/12 FILED
BY RESPONDENTS DATED 17.03.2015
EXHIBIT P9 TRUE COPY OF COMMISSION REPORT AND PLAN
FILED BY ADVOCATE COMMISSIONER ON
13.06.2017.
EXHIBIT P10 TRUE COPY OF ORDER IN I.A.NO.7394/2017
IN OS.NO.1653/12 DATED 02.08.2018 OF THE
ADDITIONAL MUNSIFF COURT-II,
THIRUVANANTHAPURAM.
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EXHIBIT P11 TRUE COPY OF COMMISSION APPLICATION, IA
NO.5543/18 IN OS NO.1653/12 FILED BY
RESPONDENT DATED 06.08.2018.
EXHIBIT P12 TRUE COPY OF OBJECTION FILED BY
PETITIONER DATED 22.10.2018.
EXHIBIT P13 TRUE COPY OF ORDER IN I.A.NO.5543/2018
IN O.S.NO.1653/2012 DATED 16.09.2020 OF
THE ADDITIONAL MUNSIFF COURT-II,
THIRUVANANTHAPURAM.
