Dismissed

Glory George & Others v. Kunjamma & Others

Kerala HC21 Jan 2011OP(C)/294/2011

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an original petition filed by defendants aggrieved by the subordinate judge's order appointing a Commissioner for local inspection in a suit to set aside a property document. The bench held that the lower court exercised discretion correctly and no improper motive was found. There is no illegality to warrant interference.

What the court decided

AI extract

Glory George & Others Vs Kunjamma & Others — Partition | Kerala HC (2011)

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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.T.SANKARAN

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FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932

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OP(C).No. 294 of 2011(O)

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I.A.NO.3041/2010 IN O.S.NO.10/2009 OF SUB COURT, KOTTAYAM.

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PETITIONERS/DEFENDANT NOS. 3,4, & 5

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GLORY GEORGE, W/O. GEORGE ANTONY, AGED 54 YEARS, SKYLINE BUILDERS, RAJAJI ROAD, COCHIN-682035.

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GEORGE ANTONY @ VAKKACHAN, AGED 54 YEARS, SENIOR VICE PRESIDENT, SKYLINE BUILDERS, RAJAJI ROAD, COCHIN-682035.

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JOSSY JOSEPH, W/O. JOSEPH, AGED 48 YEARS, PUTHUSSERRY, PUTHUSSERRY HOUSE,

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ATHIRAMPUZHA-656562.

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BY ADV. SMT.K.V.BHADRA KUMARI

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SMT.MARYKUTTY T.C.

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RESPONDENTS: PLAINTIFF & DEFENDANT NOS 1,2, & 6

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KUNJAMMA, W/O. LATE V.M. ALEX @ ALLESH, AGED 82 YEARS, PRESENTLY RESIDING AT PUTHENKANNITTAYIL, KUNNUMMA.P.O.,KAVALAM,KUTTANAD FROM VALLY VILLA, VANNALIL,LAYIKKAD, PERUNNA KIZHAKKUM MURI, CHANGANACHERRY VILLAGE,

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CHANGANACHERRY TALUK.

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MERCY JOSEPH, W/O. K.S.JOSEPH, AGED 62 YEARS, KINATTUKARA BASLEEL, CONVENT ROAD, CMC II, CHERTHALA-688524, ALAPPUZHA DISTRICT.

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SUSAN STANLY, W/O. STANLY VELIMPARAMBIL, AGED 58 YEARS, QUARTER NO.27,MEHADRIPETTA, DEFENCE COLONY, KANCHARAPALAM.P.O., VISAKHAPATTANAM-530008.

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JOLLY JOSEPH, W/O. JOSEPH AGED 57 YEARS, PUTHENKANNITTAYIL, KANNUMMA.P.O., KAVALAM, KUTTANAD-688505.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN, J.

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O.P.(C). NO. 294 OF 2011 O

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Dated this the 21^st day of January, 2011

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JUDGMENT

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Defendants 3, 4 and 5 in O.S.No.10 of 2009 on the file of the Court of the Subordinate Judge, Kottayam, are aggrieved by the order dated 7.12.2010 in I.A.No.3041 of 2010, by which, the court below allowed the application filed by the first defendant to appoint a Commissioner for local inspection.

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The suit was filed for setting aside a document executed in favour of the petitioners by the father of the parties. The mother is the plaintiff. The mother prayed for setting aside the document executed in favour of the petitioners. The first defendant supported the mother. The first defendant filed I.A.No.3041 of 2010 to appoint a Commissioner to inspect the plaint schedule property and to file a report and plan and to note the points mentioned in the Commission application.

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O.P.(C) NO.294 OF 2011 O

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:: 2 ::

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In I.A.No.3041 of 2010, defendants 3 to 5 filed objection.

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The relevant portion of the objection reads as follows:

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“In order to adjudicate the matters in disputes in the above suit the issuance of an Advocate Commission is not at all necessary. In the above suit local inspection and reporting is not proper nor a requisite for the purpose of deciding the matters in dispute. The 1^st defendant who is supporting the plaintiff has filed this petition with ulterior motives and with the intention to protract and drag the matters indefinitely and thereby to cause difficulties and hardships to the defendat Nos.3 to 5/respondent Nos.3 to 5.”

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The court below thought it fit to appoint a Commissioner to inspect the property. On perusing the objection raised by defendants 3 to 5, their only contention is that appointment of an Advocate Commissioner is not at all necessary for the purpose of deciding the suit.

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No prejudice would be caused to the petitioners (defendants 3 to 5) if a Commissioner is appointed. The suit is of the year 2009 and the application was filed without delay. The court

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O.P.(C) NO.294 OF 2011 O

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:: 3 ::

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below exercised the discretion to allow the application for appointment of a Commissioner. There is no illegality or impropriety or error of law in the order impugned in this Original Petition warranting interference under Article 227 of the Constitution of India.

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The Original Petition is, accordingly, dismissed.

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(K.T.SANKARAN) Judge

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ahz/

Glory George & Others v. Kunjamma & Others

Case brief

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Glory George & Others v. Kunjamma & Others

Case brief

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