Disposed

Joy Varghese v. N.Ramanan

Kerala HC19 Dec 2014OP(C)/3053/2014

Case brief

AI extract

What is this about?

This single judge order in an original civil petition acknowledges the trial court's dismissal of an application for a survey commission as bound by the lower appellate court's remand order. The court declines to intervene on merits, directing the petitioner to seek a review of the appellate judgment instead.

What did the court decide?

The trial scheduled for 07.01.2015 was postponed for three weeks. The original petition was otherwise disposed of pending the outcome of potential review or other remedies.

Joy Varghese Vs N.Ramanan — Property and Title | Kerala HC (2014)

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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.BHAVADASAN

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FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936

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OP(C).No. 3053 of 2014 (O)

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(OS 307/2009 of MUNSIFF COURT, ADOOR)

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PETITIONER:

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JOY VARGHESE, AGED 65 YEARS, S/O. GEEVARGHESE, PALAVILAYIL VEEDU, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT.

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BY ADVS.DR.PAULY MATHEW MURICKEN SRI.P.L.VENU KUMAR

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RESPONDENTS:

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N.RAMANAN, PALAMUTTATH HOUSE, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN - 691 526.

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GOUTHAMAN, S/O. NANU, PALAMUTTATH HOUSE, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN - 691 526.

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GEORGE VARGHESE, S/O. VARGHESE, BIJU BHAVAN, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN - 691 526.

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MARIAMMA GEORGE, W/O. GEORGE VARGHESE, BIJU BHAVAN, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN - 691 526.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C) 3053/14

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A P P E N D I X

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PETITIONER'S EXHIBITS:

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EXT. P1	:	COPY OF COUNTER CLAIM FILED BY PETITIONER HEREIN IN O.S.307/09 OF MUNSIFF COURT, ADOOR.
EXT. P2	:	COPY OF JUDGMENT DTD.30.7.12 PASSED BY MUNSIFF COURT, ADOOR IN O.S.307/09.
EXT. P3	:	COPY OF COMMON JUDGMENT DTD. 31.7.14 PASSED BY DISTRICT COURT, PATHANAMTHITTA IN A.S.48/13 AND A.S.92/13.
EXT. P4	:	COPY OF PLAINT IN O.S.203/10 OF MUNSIFF COURT, ADOOR.
EXT. P5	:	MAHAZAR PREPARED BY ADVOCATE COMMISSIONER IN O.S.203/10.
EXT. P6	:	COPY OF OBJECTIONS FILED BY R1 TO COMMISSION REPORT.
EXT. P7	:	COPY OF I.A.372/13 IN O.S.203/10 FILED BY R1.
EXT. P8	:	COPY OF ORDER DTD. 6.6.14 PASSED BY MUNSIFF COURT, ADOOR IN I.A.372/13 IN O.S.203/10.
EXT. P9	:	COPY OF APPLICATION FILED BY PETITIONER HEREIN ALONG WITH RESPONDENTS 3 & 4 AS I.A.1876/14 IN O.S.307/09.
EXT. P10	:	COPY OF ORDER DTD. 7.11.14 PASSED BY MUNSIFF COURT, ADOOR IN I.A.1876/14 IN O.S.307/09.
EXT. P11	:	COPY OF DOCUMENT PERTAINING TO PLAINT SCHEDULE PROPERTY IN O.S.203/10 OF MUNSIFF COURT, ADOOR.
EXT. P12	:	COPY OF PLAINT IN O.S.307/09 OF MUNSIFF COURT, ADOOR.

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RESPONDENT'S EXHIBITS: NIL.

// True Copy //

P.A. To Judge.

smp

P.BHAVADASAN, J.

Original Petition (Civil) No.3053 OF 2014 ------------------------------------------------Dated this the 19^th day of December, 2014.

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J U D G M E N T

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This original petition is directed against Ext.P10 order whereby the court below refused to accept the plea of the petitioner for issuance of a commission for obtaining proper plan and report.

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The petitioner is the 3^rd defendant in O.S.No.307/2009 before the Munsiff Court, Adoor. That was a suit of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and from destroying the boundary and putting up of wire fencing along the boundary. The petitioner who was the 3^rd defendant in the suit entered appearance and filed counter claim apart from defending the suit. Both the suit and the counter claim were dismissed by the trial court from which two appeals were filed namely, A.S.No.48/2013 and A.S.No92/2013. The appeals were heard together and by a common judgment, the judgment and decree of the trial court

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O.P.(C) No.3053/2014

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was set aside and the matter was remanded to the trial court. There was also a direction that O.S. No.307/2009 shall be jointly

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tried along with O.S.No.203/2010.

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After the matter was taken up on remand by the trial court, complaining about the lack of materials for proper adjudication of the issues involved in the suit, the petitioner moved for issuance of a survey commission in order to measure the properties and for obtaining a proper report and plan. The trial court dismissed the petition on the ground that in the remand order passed by the lower appellate court, there is a specific observation that in the light of the fact that there is already a commission report and plan in one of the suits, it is not

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necessary to issue another commission. Since the learned Munsiff was bound by the remand order, it had no option but to dismiss the petition. It did so. That brought the petitioner before this Court.

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Learned counsel appearing for the petitioner pointed out that in O.S.No.307/2009 where he has filed a counter claim, Commissioner's report is found wanting and that is the reason for

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O.P.(C) No.3053/2014

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seeking issuance of a commission. It is also pointed out that for proper adjudication of the issue, it is necessary that proper plan and report be obtained. The lower court was not justified in dismissing the petition without adverting to the facts of the case.

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Even assuming that there may be merit in the claim made by the petitioner, the trial court was bound by the order of remand made by the lower appellate court wherein it has specifically stated that in the light of the fact that there is already a Commissioner's report in O.S.No.203/2010 it is not necessary to issue another commission in O.S.No.307/2009.

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After having got a common judgment in both the appeals and since there is an observation made by the lower

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appellate court to the effect that no fresh commission shall be issued, it comes too late to say that since the parties are allowed to adduce further evidence, the view taken by the lower appellate court shall be overlooked and a commission shall be issued.

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If, as a matter of fact, the petitioner is aggrieved by the

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observation so made by the lower appellate court, the proper remedy available to the petitioner is to seek a review of that

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O.P.(C) No.3053/2014

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judgment and appraise that court the necessity for issuance of a fresh commission.

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Learned counsel appearing for the petitioner then pointed out that he may be given some time to approach the

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lower appellate court for seeking a review or other appropriate remedies and till then the trial of the suit may be deferred.

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The trial scheduled to 07.01.2015 shall stand postponed for a period of three weeks so as to enable the petitioner to seek appropriate remedies.

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This original petition is disposed of as above.

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Sd/-

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P.BHAVADASAN JUDGE

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smp

Joy Varghese v. N.Ramanan

Case brief

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Joy Varghese v. N.Ramanan

Case brief

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