Allowed

Moideenkutty Haji v. Moideenkutty

Kerala HC5 Feb 2013OP(C)/171/2013

Case brief

AI extract

What is this about?

The single judge allowed an original petition challenging orders below that closed an application to appoint an Advocate Commissioner. The court set aside the impugned orders and directed the lower court to pass appropriate orders on the revived application, instructing the Commissioner to expedite the report.

What did the court decide?

Impugned orders dated 18.12.2012 and 20.12.2012 set aside; Ext.P5 application revived; Munsiff directed to pass orders and expedite proceedings.

Moideenkutty Haji Vs Moideenkutty — Property and Title | Kerala HC (2013)

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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 THOMAS P.JOSEPH

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TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934

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OP(C).No. 171 of 2013 (O)

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I.A.NO.2458/2012 IN I.A.NO.265/2012 IN O.S.NO.102/2008 ON the FILE OF MUNSIFF'S COURT, PARAPPANANGADI

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PETITIONER(S)/PETITIONER:

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MOIDEENKUTTY HAJI AGED 66 YEARS S/O.PANTHAKKAL ALAVIKUTTY HAJI, PONTHAKKAL HOUSE KLARI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DIST

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BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN

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RESPONDENT(S):

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MOIDEENKUTTY S/O.PANTHAKKAL MUHAMMED MASTER, PATHAKKAL KLARI AMSOM, TIRURANGADI, MALAPPURAM DIST PIN-676501

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KUNHAMMEDKUTTY S/O.PANTHAKKAL MUHAMMED MASTER, PATHAKKAL KLARI AMSOM, TIRURANGADI, MALAPPURAM DIST PIN-676501 3. MARIYAKUTTY, W/O.PANTHAKKAL MUHAMMED MASTER, PATHAKKAL KLARI AMSOM, TIRURANGADI, MALAPPURAM DIST PIN-676501 R1 BY ADV. SRI.T.SETHUMADHAVAN R1 BY ADV. SRI.PUSHPARAJAN KODOTH

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 171 of 2013

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXT.P1:-	TRUE COPY OF PLAINT DTD 2/4/2008 IN OS NO 102/2008 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI,
EXT.P2:-	TRUE COPY OF THE WRITTEN STATEMENT DTD 19/8/2008 FILED BY THE RESPONDENTS HEREIN IN OS NO 102/2008 BEFORE THE MUNSIFF'S COURT, PARAPPANAGADI
EXT.P3:-	TRUE COPY OF THE REPORT DTD 11/1/2012 OF THE ADVOCATE COMMISSIONER IN IA NO 341/2011 IN OS NO 102/2008 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI,
EXT.P3(A):	- TRUE COPY OF THE PLAN DTD 11/1/2012 OF THE ADVOCATE COMMISSIONER IN IA NO 341/2011 IN OS NO 102/2008 ON THE FILE OF MUNSIFF'S COURT, PARAPPANANGADI,
EXT.P4:-	CERTIFIED COPY OF I ANO 265/2012 IN OS NO 102/2008 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI,
EXT.P5:-	TRUE COPY OF IA NO 2458/2012 IN IA NO 265/2012 IN OS NO 102/2008 ON THE FILE OF THE MUNSIFF'S COURT , PARAPPANANGADI,
EXT.P6:-	TRUE COPY OF THE OBJECTION DTD 7/12/2012 TO EXT P5
EXT.P7:-	TRUE COPY OF THE ORDER DTD 20/12/2012 IN IA NO2458/2012 IN IA NO 265/2012 IN OS NO .102/2008 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI
EXT.P8:-	TRUE COPY OF TMEMO DTD 2/11/2012 SUBMITTED BY ADVOCATE COMMISSIONER IN IA NO 265/12 IN OS NO 102/2008 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI.

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RESPONDENTS' EXHIBITS : NIL

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True Copy

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P.A to Judge

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THOMAS P.JOSEPH, J.

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========================= O.P(C).No.171 of 2013

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============================ Dated this the 05^th day of February, 2013

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J U D G M E N T

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First respondent appears through counsel.

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As amended, challenge is to the orders dated 18.12.2012 and 20.12.2012 in O.S.No.102 of 2008 of the Munsiff's Court, Parappanangadi.

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O.S.No.102 of 2008 is a suit filed by the petitioner/plaintiff for prohibitory and mandatory injunction to remove the wall allegedly constructed by the respondents in the suit property. The Advocate Commissioner submitted Exts.P3 and P3(a), report and plan. Petitioner filed Ext.P4, application - I.A.No.265 of 2012 to remit that report and plan. Learned Munsiff, on 08.06.2012 allowed the request (thereby remitting Exts.P3 and P3(a)). The Advocate Commissioner requested for assistance of the Surveyor and that was granted. After three postings, Advocate Commissioner submitted Ext.P8, memo stating that nothing further is to be reported and hence she may be allowed to return the warrant. On 02.11.2012 learned Munsiff directed petitioner to take steps in the matter. Following that, petitioner filed Ext.P5, application to appoint another Advocate Commissioner. On 18.12.2012 learned

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O.P(C).No.171 of 2013

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Munsiff closed Ext.P4, application - I.A.No.265 of 2012 in view of Ext.P5, application. To Ext.P5, application first respondent preferred Ext.P6, counter. The application was dismissed by Ext.P7,order. Thus challenge to the orders dated 18.12.2012 and 20.12.2012.

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It is submitted by the learned Munsiff that it is without inspecting the property that the Advocate Commissioner has filed Ext.P8, memo. It is also submitted that based on Ext.P8, memo, learned Munsiff had directed petitioner to take steps and accordingly petitioner filed Ext.P5, application. In the circumstance, learned Munsiff was not right in passing the impugned orders, it is contended. Learned counsel submitted that proper identification of property is necessary.

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Learned counsel for the first respondent contends that several times the report and plan were remitted and that it remains a never ending process. It is further contended that the Advocate Commissioner had visited the property with the Surveyor several times. The suit of the year, 2008 is still pending.

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Obviously it is because learned Munsiff was satisfied with the contentions raised in Ext.P4, application that on 08.06.2012 that application was allowed and Exts.P3 and P3(a)) were remitted.

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O.P(C).No.171 of 2013

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It is also evident from the order dated 02.11.2012 that learned Munsiff wanted petitioner to take further steps pursuant to the Advocate Commissioner filing Ext.P8, memo. It is pursuant to the order dated 02.11.2012 that petitioner has filed Ext.P5, application to appoint another Advocate Commissioner. That was only a follow up action pursuant to Ext.P8, memo and the order dated 08.06.2012 on Ext.P4, application. Learned Munsiff closed Ext.P4, application on 18.12.2012 for the reason of petitioner filing Ext.P5, application, which was not correct. In the circumstance the impugned orders cannot be sustained. Learned Munsiff has to pass appropriate orders on Ext.P5, application in view of the order dated 08.06.2012 on Ext.P4, application.

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No doubt the suit is of the year, 2008 and on various occasions the report and plan were remitted. There should be a finality in the matter. The dispute cannot circle round the report and plan. But in the circumstances above stated, request of petitioner cannot be disallowed.

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This original petition is allowed as under:

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(i) Order dated 18.12.2012 and Ext.P7, order dated 20.12.2012 in O.S.No.102 of 2008 of the Sub Court, Parappanangadi are set aside and Ext.P5, application would stand revived.

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O.P(C).No.171 of 2013

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(ii) Learned Munsiff is directed to pass appropriate orders on Ext.P5, application in view of the order dated 08.06.2012 on Ext.P4, application.

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(iii) Learned Munsiff shall give necessary instruction to the Advocate Commissioner and Surveyor being appointed for the purpose to expedite the proceeding and submit report and plan as early as possible.

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THOMAS P.JOSEPH, JUDGE

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Sbna

Moideenkutty Haji v. Moideenkutty

Case brief

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Moideenkutty Haji v. Moideenkutty

Case brief

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