Disposed

Mathai Mathew v. Mathai Varkey Power of Attorney Holder

Kerala HC4 Nov 2013OP(C)/2563/2013

Case brief

AI extract

What is this about?

The High Court directed the trial court to ignore the Advocate Commissioner’s report regarding matters not covered by a prior judgment and expedited the trial of the property dispute suit instituted in 2008.

What did the court decide?

Directed the trial court to ignore the Advocate Commissioner’s report insofar as it dealt with matters not covered by the earlier judgment in O.P.(C) No. 4033/2012.

Mathai Mathew Vs Mathai Varkey Power of… — Civil Procedure and Limitation | 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 P.N.RAVINDRAN

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MONDAY, THE 4TH DAY OF NOVEMBER 2013/13TH KARTHIKA, 1935

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OP(C).No. 2563 of 2013 (O)

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AGAINST THE ORDER DATED 08-07-2013 IN IA NO. 614/2013 IN OS 65/2008 OF MUNSIFF COURT, ETTUMANOOR

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PETITIONER(S) :

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1. MATHAI MATHEW, S/O. MATHAI, PULPRAYIL (H), MANJOOR P.O., OMALOOR KARA, KOTHANALLOOR VILLAGE

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2. SIBY MATHEW,

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S/O. MATHAI, PULPRAYIAL (H), MANJOOR P.O. OMALLOOR KARA, KOTHANALLOOR VILLAGE

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BY ADVS.SRI.M.BALAGOVINDAN SRI.VINOD J. DEV

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RESPONDENT :

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MATHAI VARKEY REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BABU JOSEPH, S/O JOSEPH, PANNIKOTTIL (H) PERUMBADAVAM P.O, AVARMA KARA, MULAKKULAM VILLAGE VAIKOM TALUK, PIN- 686141

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BY ADV. SRI.P.A.AUGUSTINE (AREEKATTEL)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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OP(C).No. 2563 of 2013 (O)

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APPENDIX

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PETITIONERS' EXHIBITS :

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EXHIBIT P1	TRUE COPY OF THE PLAINT O.S NO 65/2008 IN THE MUNSIFF COURT, ETTUMANNOR.
EXHIBIT P2	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS/ DEFENDANTS.
EXHIBIT P3	TRUE COPY OF THE APPLICATION FOR APPOINTMENT OF THE SURVEY COMMISSION.
EXHIBIT P4	TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE ORDER DATED 07-08-2012 IN I.A NO. 814 OF 2012 IN O.S NO. 65 OF 2008 IN THE COURT OF THE MUNSIFF, ETTUMANOOR.
EXHIBIT P6	TRUE COPY OF THE SAID JUDGMENT DATED 17-09-2012 IN IN OP (C) NO 3012/2012.
EXHIBIT P7	TRUE COPY OF THE I.A NO. 1328/2012 IN O.S NO 65/2008 IN THE COURT OF MUNSIFF, ETTUMANOOR ON 29-10-2012.
EXHIBIT P8	TRUE COPY OF THE ORDER DATED 31-10-2012 IN I.A 1328/2012 IN O.S NO 65/2008.
EXHIBIT P9	A TRUE COPY OF THE JUDGMENT IN OP 4033/2012 DATED 08-01-2013.
EXHIBIT P10	TRUE COPY OF THE ENQUIRY REPORT OF THE INVESTIGATING OFFICER AND THE PROCEEDINGS OF THE I.G OF POLICE UNDER RIGHT TO INFORMATION ACT.
EXHIBIT P11	TRUE COPY OF THE COMMISSION REPORT ALONG WITH REMITTED FILED BY THE ADVOCATE COMMISSIONER.
EXHIBIT P12	A TRUE COPY OF THE OBJECTION FILED BY THE PETITION.
EXHIBIT P13	A TRUE COPY OF THE ORDER DATED 08-07-2013 IN I.A NO 614/2013 IN O.S NO 65/2008 IN THE COURT OF MUNSIFF ETTUMANNOOR.
EXHIBIT P14	ORDER DATED 19.4.2012 IN COMPLAINANT NO. 17/2008 PASSED BY THE DISTRICT LEVEL POLICE COMPLAINTS AUTHORITY, KOTTAYAM.

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(Contd...)

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OP(C).No. 2563 of 2013 (O)

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RESPONDENT(S)' EXHIBITS :

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EXHIBIT R1(a) COPY OF THE MEMO DATED 24-7-2013 SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS NO. 65/08 OF MUNSIFF'S COURT, ETTUMANOOR.

//TRUE COPY//

P.S. TO JUDGE

P.N.RAVINDRAN , J.

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--------------------------O.P.(C) No.2563 of 2013

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Dated this the 4^th day of November, 2013

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J U D G M E N T

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The petitioners are defendants 1 and 2 in O.S.No.65 of 2008 on the file of the Court of the Munsiff of Ettumanoor. The respondent is the plaintiff therein. The suit instituted by the respondent/plaintiff is one for a permanent prohibitory inunction restraining the defendants from trespassing into the plaint schedule property or from committing acts of waste therein or from obstructing the plaintiff from putting up constructions in the plaint schedule property. Upon receipt of summons, the defendants entered appearance and filed a written statement. They also raised a counter claim claiming a right of way by prescription over the pathway allegedly in existence in the suit property. That pathway is set out in “C” scheduled to the counter claim and is described as a pathway three feet wide and 200 metres long. Before the defendants entered appearance and filed their written statement and raised the counter claim, the Advocate Commissioner appointed by the trial court on application filed by the plaintiff had filed three reports.

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After they filed their written statement and raised the

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O.P.(C) No.2563/2013 2

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counter claim, the petitioners filed I.A.No.814 of 2012 for the appointment of an Advocate Commissioner to inspect the plaint schedule property and the property scheduled to the counter claim with the help of the Taluk Surveyor and to submit a report. That application was dismissed by Ext.P5 order passed on 7.8.2012. Aggrieved thereby, the petitioners filed O.P.(C) No.3012 of 2012 in this Court. The said original petition was disposed of by Ext.P6 judgment delivered on 17.9.2012 with the observation that it will be

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open to the petitioners to seek for remitting the last of the three reports to the same Advocate Commissioner and to file a revised report with the aid of a Surveyor. This Court also directed that in the event of such an application being filed, it shall be dealt with untrammelled by the impugned order. The petitioners thereupon filed I.A.No.1328 of 2012 to remit the third commission report to the Advocate Commissioner. That application was dismissed by Ext.P8 order dated 31.10.2012. The petitioners thereupon filed O.P.(C) No.4033 of 2012 in this Court. By Ext.P9 judgment delivered on 8.1.2013, this Court set aside Ext.P8 order, allowed I.A.No.1328 of 2012 in part and directed as follows:

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8. Resultantly, this original petition is allowed in part as under:-

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(1) Ext.P8, order dismissing Ext.P7, application is set aside. (2) Ext.P7, application is allowed in part in the following lines:-

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O.P.(C) No.2563/2013

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(a) Ext.R1(c), report is remitted to the Advocate Commissioner who shall report on the exact length and width of the pathway now seen at spot.

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(b) The Commissioner shall report whether the overhead electrical line is drawn to the house of the petitioners through the disputed way and if so, the oldness of that line.

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(c) If the Advocate Commissioner finds any addition or new construction on the disputed pathway or the property of the respondents, he shall report the same and its oldness.

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(d) The Advocate Commissioner shall also prepare a sketch showing the disputed pathway with its length and width.

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3. The additional bata payable to the Advocate commissioner shall be fixed by the learned Munsiff and payable by the petitioners.

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4. The learned Munsiff is directed to expedite the proceedings and issue necessary direction to the Advocate Commissioner also in that regard.”

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The Advocate Commissioner thereupon inspected the plaint

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schedule property and submitted Ext.P11 report accompanied by a sketch. After the said report was filed, the defendants filed Ext.P12 objections in I.A.No.614 of 2013 to set aside the report submitted by the Advocate Commissioner. The principal contention raised therein was that though this Court had by Ext.P9 judgment in O.P.(C) No.4033 of 2012 directed to remit Ext.R1(c) report to the Advocate Commissioner with a direction to the Advocate Commissioner to report on the exact length and width of the pathway now seen at the spot, to report whether an overhead electrical line is drawn to the house of the petitioners through the disputed way and the age of the line, to report

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O.P.(C) No.2563/2013

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about any additional or new construction on the disputed pathway and to prepare a sketch showing the disputed pathway with its length and width, the Advocate Commissioner has reported more matters under the influence of the plaintiff. The respondent/plaintiff opposed the application. The trial court considered the rival contentions and dismissed I.A.No.614 of 2013 in O.S.No.65 of 2008 by Ext.P13 order dated 8.7.2013. The report was however remitted to the Advocate Commissioner with a direction to set out the accurate length of the disputed way and to set out its starting and terminating points. The Advocate Commissioner was directed to re-submit the report within 10 days after ascertaining the above facts. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India. It is not in dispute that pursuant to the direction in the impugned order, the Advocate Commissioner inspected the plaint schedule property on 20.7.2013 with notice to both sides and thereafter re-submitted the report and sketch along with Ext.R1(a) memo dated 24.7.2013. The Advocate Commissioner has in Ext.R1(a) memo dated 24.7.2013 stated that the disputed pathway has a length of 66 metres and that the said aspect has been incorporated in page 4 of Ext.P11 report.

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When the original petition came up for hearing today,

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O.P.(C) No.2563/2013

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Sri.P.A.Augustine (Areekattel), learned counsel appearing for the respondent/plaintiff submitted that the respondent/plaintiff has no objection in a direction being issued to the court below to ignore the matters reported by the commission except in relation to and in strict compliance with the directions issued by this Court in Ext.P9 judgment.

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In the light of the said submission, I am of the opinion that no further orders are called for in this original petition except to direct the trial court to ignore the report submitted by the Advocate Commissioner in so far as it relates to the matters which are not covered by Ext.P9 judgment of this Court dated 8.1.2013 in O.P.(C) No.4033 of 2012. In the light of the fact that the suit was instituted in the year 2008, the trial court shall expedite the trial and disposal of the suit.

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P.N.RAVINDRAN, (JUDGE)

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vps

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O.P.(C) No.2563/2013 6

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O.P.(C) No.2563/2013 7

Mathai Mathew v. Mathai Varkey Power of Attorney Holder

Case brief

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Mathai Mathew v. Mathai Varkey Power of Attorney Holder

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