Allowed

Beena Madanan v. Varijakshan

Kerala HC6 Jan 2009WP(C)/410/2009

Case brief

AI extract

What is this about?

Writ petition filed against an order deferring the setting aside of a commission report in a property suit. Court found the delay in acting on the application was designed to protract trial. Petitioner directed to seek fresh commission if report is faulty before suit disposal.

What did the court decide?

Petitioner directed to seek fresh commission if the report deserves to be set aside; suit to be disposed only after a proper commission report is obtained.

Beena Madanan Vs Varijakshan — Property and Title | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN

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TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930

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WP(C).No. 410 of 2009(W)

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OS.345/2004 of MUNSIFF COURT, PUNALUR

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PETITIONER:

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BEENA MADANA, W/O. MADANAN, M.B.M.HOUSE AGASTHYACODU MURI, PATHANAPURAM TALUK, ANCHAL, KOLLAM DISTRICT.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENTS:

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VARIJAKSHAN, S/O.DIVAKARAN, SAKTHY BHAVAN,AGASTHYACODU MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.

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SUJA W/O.VARIJAKSHAN, SAKTHY BHAVAN, AGASTHYACODU MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2009, T HE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.P. Balachandran, J.

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W.P.(C)No.410 of 2009 W

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JUDGMENT

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Petitioner is the plaintiff in O.S.No.345/04 on

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the file of the Munsiff's Court, Punalur and the respondents are the defendants therein. The suit was one for injunction and other consequential reliefs. Respondents/defendants filed Exhibit P2

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written statement and counter claim and the petitioner/plaintiff filed Exhibit P3 objection to

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the counter claim. On the application of the respondents/defendants a commission was issued. It

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is submitted that commission was issued to

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ascertain the nature and lie of the property scheduled in the plaint and in the counter claim. According to the petitioner/plaintiff, the Commissioner has colluded with the respondents/ defendants and filed a false report deviating from the actual lie of the scheduled property and it

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was, therefore, that he filed Exhibit P4 application to set aside the commission report.

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WPC 410/09

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There is no mention at all as to when the commission report was filed. Exhibit P4 application was, however, filed on 1.12.2006 as seen from the dating in Exhibit P4 at running page 28 of this writ petition. It appears that no initiative was taken by the petitioner/plaintiff to see that Exhibit P4 application is considered at an early date and orders obtained. Consequently, it was only on 3.11.2008 that the matter was heard and Exhibit P5 impugned order was passed.

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Vide Exhibit P5 order, the court below

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directed that since the matter is ripe for trial,

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Exhibit P4 application will be considered along with the suit, as according to him, the genuineness or otherwise of the survey measurements has to be analysed in deciding the issue regarding fixation of boundary and the prayer for setting aside the commission report requires to be considered along with other evidence to be adduced at a later stage. It was, therefore, vide Exhibit P5 order, that

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WPC 410/09 3

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Exhibit P4 application to set aside the commission report was deferred for consideration along with the suit.

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It is true that in the normal course, the

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question as to whether the commission report has to be set aside or not is to be adjudged before the trial of the suit. But, in the instant case, I see that though Exhibit P4 application was filed on 1.12.2006, the petitioner/plaintiff did not want an order at an early date and now the suit is listed for trial on 13.1.2009 and it is then that this

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writ petition is filed yesterday, namely on 5.1.2009, assailing Exhibit P5 order dated 3.11.2008, though copy of the order was taken delivery of on 26.11.2008 by the petitioner/

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plaintiff. I cannot, but, view the attempt of the petitioner/plaintiff as one designed to protract the trial of the suit.

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In the result, I dispose of this writ petition directing the court below not to dispose of the

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WPC 410/09 4

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suit in case it finds that the commission report deserves to be set aside and a fresh commission issued as the commission report filed in the case is not to be accepted and in that event, to afford an opportunity to the petitioner/plaintiff to take out a commission afresh and to dispose of the suit only after getting down a proper commission report.

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6^th January, 2009 (K.P.Balachandran, Judge) tkv

Beena Madanan v. Varijakshan

Case brief

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Beena Madanan v. Varijakshan

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