Allowed

V.v.Sundaran v. Jayaprakash

Kerala HC1 Mar 2011OP(C)/562/2011

Case brief

AI extract

What is this about?

The Kerala High Court set aside the order dismissing a commission application, permitting the plaintiffs to take out a commission upon depositing an additional batta of Rs. 500/- with the court below within a stipulated period, treating the original petition as dismissed if the condition is not met.

What did the court decide?

Order dated 4.1.2011 in I.A. No. 1083 of 2010 set aside; plaintiffs to deposit Rs. 500/- by 31.3.2011 for commission inspection.

V.v.Sundaran Vs Jayaprakash — Execution and Attachment | 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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TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932

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OP(C).No. 562 of 2011(O)

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AGAINST THE ORDER DATED 4.1.2011 IN I.A.NO.1083/2010 IN OS.421/2009 OF ADDL.MUNSIFF'S COURT, PALAKKAD

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PETITIONERS

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SUNDARAM.V.V, AGED 70 YEARS, S/O.VELAYUDHAN ASARI, 6/583, VALIYAPADAM, CHOCKANATHUPURAM, PALAKKAD.

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JANSI RANI.V.S, 40 YEARS, D/O.V.V.SUNDARAM, 6/585, VALIYAPADAM, CHOCKANATHUPURAM, PALAKKAD.

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BY ADV. SRI.K.K.JAYARAJ NAMBIAR

SMT.RAMYA PRASAD

RESPONDENT:

JAYAPRAKASH.V.S,

S/O.ACHUTHAN NAIR, MALAMAL HOUSE, VALIYAPADAM, CHOKANATHAPURAM, PALAKKAD, PIN-678 001.

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ADV. SRI.JOHN JOSEPH(ROY) FOR R1

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/03/2011, 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. 562 OF 2011 O

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Dated this the 1^st day of March, 2011

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JUDGMENT

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The petitioners are the plaintiffs in O.S.No.421 of 2009 on the file of the Court of the Munsiff (Additional), Palakkad. They filed I.A.No.1083 of 2010 to appoint a Commissioner to inspect the property with the help of the Village Officer. That application was allowed on 31.5.2010. It is stated that the Commissioner's batta was deposited. It is also stated that due to non-availability of the Village Officer, the Commissioner could not inspect the property immediately. The Commissioner issued notice intimating that the property would be inspected on 24.11.2010. Ext.P2 work memo dated 23.11.2010 was submitted by the plaintiffs.

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According to the plaintiffs, the defendant wanted postponement of the inspection and the Commissioner agreed for the same. The counsel for the defendant agreed to file a statement before Court stating that the defendant made a request for postponement of the inspection. However, no such statement was filed. The Commissioner did not inspect the property on 24.11.2010. The Commissioner filed a report dated 8.12.2010 before Court

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O.P.(C) NO.562 OF 2011

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:: 2 ::

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stating that the defendant's counsel reported certain inconveniences on 24.11.2010. The Commissioner also stated that he was ready to inspect the property, but the parties were not present. Accepting the interim report dated 8.12.2010, the court passed an order directing the plaintiffs to pay an additional commission batta of ` 500/-. The plaintiffs moved I.A.No.3550 of 2010 to review that order. That application was posted to 4.1.2011. On 4.1.2011, the court below dismissed the Commission application on the ground that the Commissioner had fixed the date for inspection on 4.1.2011 and the petitioners' counsel filed a statement showing that he is engaged in another court. The court below concluded that the plaintiffs were trying to protract the proceedings. On that ground, the application for appointing a Commissioner was dismissed.

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It is evident that both parties did not fully co-operate with the Commissioner. The court below directed the plaintiffs to deposit an additional batta of 500/-. They did not do so. On the other hand, they filed I.A.No.3550 of 2010 to review that order. The learned counsel for the petitioners submitted that the petitioners are ready and willing to deposit 500/- as ordered by the court and to withdraw I.A.No.3550 of 2010. This submission is recorded. I think,

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O.P.(C) NO.562 OF 2011

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:: 3 ::

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an opportunity can be granted to the plaintiffs to take out a Commission on deposit of the additional batta of ` 500/- as ordered by the court.

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Accordingly, the order dated 4.1.2011 in I.A.No.1083 of 2010 is set aside on condition that the petitioners shall deposit 500/- before the court below on or before 31.3.2011. On deposit of the aforesaid amount of 500/-, the Commissioner shall inspect the property as per the directions issued by the court. Both parties will be entitled to file work memo before the Commissioner and the Commissioner shall take note of the same while conducting the inspection. If the petitioners fail to deposit ` 500/- on or before 31.3.2011, the order dated 4.1.2011 passed by the court below in I.A.No.1083 of 2010 shall remain in force and the Original Petition shall be treated as dismissed. The court below shall dismiss I.A.No.3550 of 2010 as withdrawn.

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The Original Petition is disposed of as above.

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(K.T.SANKARAN) Judge

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ahz/

V.v.Sundaran v. Jayaprakash

Case brief

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V.v.Sundaran v. Jayaprakash

Case brief

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