Dismissed

Bhaskaran v. K.Kumaran

Kerala HC5 Nov 2013OP(C)/3851/2013

Case brief

AI extract

What is this about?

This judgment dismisses an original petition under Article 227 challenging an order rejecting an application for specific performance of an alleged oral settlement reached before an Advocate Commissioner. The Court held that such oral agreements are not executable via court order and the petitioner has no locus standi to compel such performance.

What did the court decide?

Original petition dismissed with observation that the relief sought in the imugned order was not maintainable.

Bhaskaran Vs K.Kumaran — 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 P.N.RAVINDRAN

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TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935

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OP(C).No. 3851 of 2013 (O)

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PETITIONER :

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----------

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BHASKARAN, AGED 75 YEARS S/O.GANAPATHI, VALAPPIL NELLIKATTU PARAPPANANGADI POST, MALAPPURAM DISTRICT PIN - 676 303.

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

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RESPONDENT :

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-----------

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K.KUMARAN, S/O.RAMAN, KARUVATH, PARAPPANANGADI POST MALAPPURAM DISTRICT, PIN - 676 303.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 3851 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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-----------------------

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EXT.P-1:	TRUE COPY OF PLAINT DATED 21.6.2006 IN O.S.NO.180/2006 FILED BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI.
EXT.P-2:	TRUE COPY OF WRITTEN STATEMENT DATED 31.10.2006 FILED BY THE PETITIONER HEREIN IN O.S.NO.180/2006 BEFORE THE MUNSIFF'S COURT, TIRUR.
EXT.P-3:	TRUE COPY OF JUDGEMENT DATED 28.6.2012 IN OP(C) NO.39/2010 PASSED BY THIS HON'BLE COURT.
EXT.P-4:	TRUE COPY OF THE PLAN DATED 10.12.2012 IN O.S.NO.180/2006 SUBMITTED BY ADVOCATE COMMISSIONER.
EXT.P-5:	TRUE COPY OF REPORT DATED 10.12.2012 IN O.S.NO.180/2006 SUBMITTED BY ADVOCATE COMMISSIONER.
EXT.P-6:	TRUE COPY OF THE AFFIDAVIT DATED 14.3.2013 FILED ALONG WITH THE APPLICATION TO REMIT EXHIBIT P4 AND EXT.P5 REPORT FILED BY THE PETITIONER O.S.NO.180/2006 BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI.
EXT.P-7:	TRUE COPY OF I.A.NO.1189/2013 DATED 18.6.2013 FILED BY THE PETITIONER IN O.S.NO.180/2006 BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI.
EXT.P-8:	TRUE COPY OF THE COUNTER DATED 18.7.2013 TO EXHIBIT P7 FILED BY THE RESPONDENT
EXT.P-9:	TRUE COPY OF I.A.NO.1721/2013 DATED 27.9.2013 FILED BY THE RESPONDENT IN O.S.NO.180/2006 BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI.
EXT.P-10:	CERTIFIED COPY OF ORDER DATED 4.10.2013 IN I.A.NO.1189/2013 IN O.S.NO.180/2006 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI.
EXT.P-10(A)	: TYPED COPY OF EXT.P10
RESPONDENT( -----------	S)' EXHIBITS : NIL. ------------ //TRUE COPY//

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P.A. TO JUDGE

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P.N.RAVINDRAN , J.

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O.P.(C) No.3851 of 2013

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Dated this the 5^th day of November, 2013

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J U D G M E N T

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The petitioner is the defendant in O.S.No.180 of 2006 on the

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file of the Court of the Munsiff of Parappanangadi. The sole respondent is the plaintiff therein. The suit instituted by the respondent/plaintiff is one for a permanent prohibitory injunction restraining the defendant from trespassing into the plaint B schedule property. Upon receipt of summons, the petitioner entered appearance and filed a written statement resisting the suit. In the court below, an Advocate Commissioner was appointed to inspect the plaint schedule property and he submitted a report and plan dated 9.1.2009. The petitioner challenged the said report and plan were remitted by order passed on I.A.No.703 of 2009. The petitioner thereafter filed I.A.No.57 of 2010 seeking the assistance of the District Surveyor. The said applications were dismissed on the ground that the petitioner herein did not co-operate with the Advocate Commissioner and the District Surveyor. The petitioner challenged the said order by filing O.P.(C) No.39 of 2010 in this Court. By Ext.P3 judgment delivered on 28.6.2012 in the said original petition, this Court allowed I.A.No.703 of 2009 as also

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O.P.(C) No.3851/2013 2

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I.A.No.57 of 2010 filed by the petitioner seeking the assistance of the District Surveyor subject to payment of Rs.5,000/- as costs within three weeks. This Court also directed the trial court to appoint the same Commissioner or another Commissioner to execute the warrant and to complete the inspection with the assistance of the District Surveyor.

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Thereupon, an inspection was conducted on 8.12.2012 and the Advocate Commissioner submitted Ext.P5 report dated 10.12.2012. The said report discloses that the parties had come to a settlement of the dispute and that the plaintiff had agreed to cut and remove the trees standing on the survey boundary separating the properties belonging to him and the defendant at his expense and to construct a compound wall along the survey boundary within a period of three months. After the Advocate Commissioner submitted Ext.P5 report, the petitioner filed an application to remit the plan and report to the Advocate Commissioner inter alia on the ground that the plaintiff had not acted as agreed to between the parties though he has cut and removed the trees standing on the survey boundary and therefore, it has become necessary to have the report and plan remitted to the Advocate Commissioner for the purpose of having the boundaries of the properties of the parties identified. He also filed

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O.P.(C) No.3851/2013

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I.A.No.1189 of 2013 for an order directing the plaintiff to construct a compound wall along the line AB as noticed by the Advocate Commissioner. The plaintiff opposed the said application by filing Ext.P8 counter affidavit. He also filed I.A.No.1721 of 2013 under Order XXXIX rule 2(3) of the Code of Civil Procedure to proceed against the petitioner for violation of the interim order of injunction. The court below considered I.A.No.1189 of 2013 and dismissed it by Ext.P10 order dated 4.10.2013. It was held that the application is misconceived and the relief prayed for therein cannot be granted. Hence this original petition under Article 227 of the Constitution of India.

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I heard Sri.K.P.Sudheer, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. The relief sought in I.A.No.1189 of 2013, which was dismissed by Ext.P10 order reads as follows:

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§æÄÞKßºîá çÌÞÇßMßAáK ¥ËßÁÕßxßW ÉùÏáK Ø¢·Äßµ{ÞW, 10_12_12_Þ¢ È^ ¥ÁbAxí µNß×ÃV çÌÞÇßMßºî ùßçMÞVGßæaÏá¢ ÉïÞÈßæaÏá¢ ¥¿ßØíÅÞÈJßÜá¢, ¥ÈcÞÏAÞøÈá¢ dÉÄßÏá¢ µâ¿ß µÞøcBZ ²Já ÄàVMÞÏ ØíÅßÄßAá¢, ¥ÈcÞÏAÞøX ²JáÄàVMádÉµÞø¢ ÎøBZ Îáùßºîí ®¿áJÄßÈÞÜá¢ ¥ÁbAxí µNß×ÃV ÁßØíd¿ßµíxí ØVçÕîÏV Îáç¶È ÈßVHÏßºî AB ¥ÄßøßW ¥ÈcÞÏAÞøçÈÞ¿í ÎÄßW æµGáÕÞX ÌÙáÎÞÈæMG çµÞ¿Äß µWMßºîáµßGÞÈá¢, ¥ÈcÞÏAÞøX µWMÈ ¥ÈáØøßAÞJ Éf¢ ¥ÈcÞÏAÞøX çÉøßW ÏáµñÎÞÏ È¿É¿ßµZ ØbàµøßAáÕÞÈá¢ µWMÈ ©IÞÕÞX ¥çÉfßAáKá.

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Shorn of details the relief sought by the petitioner was an order directing the plaintiff to act as agreed upon and to construct a

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O.P.(C) No.3851/2013

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compound wall along the line AB shown in the plan submitted by the Advocate Commissioner along with his report dated 10.12.2012. The court below dismissed the said application by Ext.P10 order, which is impugned in the instant original petition. Paragraph 6 of the impugned order which alone is relevant for the purpose of this case reads as follows

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6. The point: This is a petition filed under Sec.151 of the Code of civil Procedure seeking exercise of inherent jurisdiction of the court. The case of the petitioner is that an oral agreement reached between the parties before the Advocate Commissioner is to be executed by way of an order in this IA. I am of the opinion that the petitioner is not entitled to get the specific performance of an oral contract agreed between the parties by way of an order in this IA. The petition read as if the Advocate commissioner was deputed to resolve the dispute between the parties and the finding of the Commissioner is an executable order. I am of the opinion that petition of this nature is quite unheard of and is not maintainable in the eye of law. Hence the petition is liable to be dismissed with cost of the respondent.

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In the result,

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1. That the petition is dismissed.

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2. That the petitioner is directed to pay the cost to the respondent.”

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A reading of the impugned order discloses that the court

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below has held that that a petition of the kind is not maintainable and that the petitioner should resort to other remedies. In my opinion no exception can be taken to the finding entered by the trial court that the relief sought in I.A.No.1189 of 2013 cannot be granted. If as contended by the petitioner the plaintiff has failed to act as agreed to

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O.P.(C) No.3851/2013

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by him, his remedy lies either in defending the suit or in filing an application to record the compromise stated to have been arrived at between the parties. The petitioner cannot pray for an order directing the plaintiff to act as stated by him before the Advocate Commissioner and to put up compound wall on the line AB marked by the Advocate Commissioner in the plan submitted by him along with his report dated 10.12.2012. The court below was therefore perfectly right in passing the impugned order.

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The original petition fails and is accordingly dismissed with the above observation.

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P.N.RAVINDRAN, (JUDGE)

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vps

Bhaskaran v. K.Kumaran

Case brief

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Bhaskaran v. K.Kumaran

Case brief

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