Disposed

Raju K Jose v. Roy K Thomas

Kerala HC25 Jul 2016OP(C)/1428/2016

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ petition under Article 227 challenging the dismissal of an application to review an order about a Commissioner's report. The Court directed the lower court to expedite disposal of the pending application within three months.

What did the court decide?

The court below is directed to dispose of I.A. No.703/2015 in O.S. No.133/2012 by affording opportunity to parties to adduce evidence within three months from the date of receipt of this judgment.

Raju K Jose Vs Roy K Thomas — Execution and Attachment | Kerala HC (2016)

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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.RAMAKRISHNAN

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MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938

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OP(C).No. 1428 of 2016 (O) ---------------------------

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IA.1140/2015 IN OS.133/2012 OF MUNSIFF COURT, ETTUMANOOR

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PETITIONER(S):

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RAJU K JOSE, S/O.JOSE, AGED 55 YEARS, KAITHARAM (H) ETTUMANOOR P.O., KOTTAYAM, PIN: 686 631.

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BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE

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RESPONDENT(S):

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ROY K THOMAS, KOTTOOR, KANJIRATHINKAL, ETTUMANOOR P.O., KOTTAYAM, PIN: 686 631.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1428 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE PLAINT IN OS.133/12 OF THE HON'BLE MUNSIFF COURT, ETTUMANOOR.

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P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S NO.133/12

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OF THE HON'BLE MUNSIFF COURT ETTUMANOOR

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P3 TRUE COPY OF THE COMMISSION REPORT DT. 6/7/2012 IN I.A NO.734/2012 IN O.S NO.133/12 OF THE HON'BLE MUNSIFF COURT

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ETTUMANOOR

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P4 TRUE COPY OF THE COMMISSION REPORT ALONG WITH THE SURVEY

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PLAN IN I.A NO.1376/13 IN O.S NO.133/12 OF THE HON'BLE

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MUNSIFF COURT ETTUMANOOR

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P5 TRUE COPY OF THE I.A 703/2015 IN O.S NO.133/12 OF THE HON'BLE MUNSIFF COURT ETTUMANOOR

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P6 TRUE COPY OF THE ORDER DT.8/1/2016 IN I.A NO.1140/15

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IN OS 133/12 OF THE HON'BLE MUNSIFF COURT, ETTUMANOOR.

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K. RAMAKRISHNAN, J.

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.................................................. O.P.(C).No.1428 of 2016

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....................................................... Dated this the 25^th day of July, 2016.

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JUDGMENT

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This original petition is filed by the petitioner challenging Ext.P6 order passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner filed Ext.P1 suit as O.S.No.133/2012 for mandatory injunction, fixation of boundary and consequential reliefs. The respondent entered appearance and filed Ext.P2 written statement. The petitioner thereafter filed I.A.No.1376/2013 for measuring the property with the help of a surveyor and the Commissioner submitted Ext.P4 report along with the survey plan. The petitioner filed I.A.No.703/2015 for setting aside the Commissioner's report and seeking for a fresh report. But the application was posted along with the suit. So he filed another application as I.A.No.1140/2015 to review the order and dispose of I.A.No.703/2015, but that petition was dismissed stating that there is nothing to review and the case will be decided only on the basis of the evidence available and again posted the application along with the suit. Aggrieved by the same, the present petition has been filed.

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Though notice was served on the respondent, he did not

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appear. Heard counsel for the petitioner.

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When an application to set aside the commissioner's report

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O.P.(C).No.1428 of 2016

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is filed, after giving opportunity to the parties to adduce evidence or after hearing them the court below is expected to pass some orders in that application and without disposing that application, it is not possible for the court to make the case ripe for trial as well. But for the purpose of setting aside the commissioner's report, strong evidence must be required. So considering the circumstances, the writ petition is disposed of as follows:

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The court below is directed to expedite the disposal of I.A.No.703/2015 in O.S.No.133/2012 pending before that court after affording opportunity to the parties to adduce evidence on that application as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.

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With the above directions and observations, this petition is disposed of.

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Office is directed to communicate a copy of this judgment to the concerned court immediately.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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/true copy/

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P.S to Judge

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Raju K Jose v. Roy K Thomas

Case brief

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Raju K Jose v. Roy K Thomas

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