Dismissed

Moideenkutty Haji v. Moideenkutty

Kerala HC23 Jun 2016OP(C)/1846/2015

Case brief

AI extract

What is this about?

The petitioner challenged the dismissal of an application for remitting an Advocate Commissioner's report, arguing the trial court misused its discretion. The court held the trial could not be stalled by petitioner's dissatisfaction despite multiple remittances but allowed objections against the report during trial.

What did the court decide?

Original petition disposed of without allowing interference with the trial court's order dismissing the application for remittance of the commission report.

Moideenkutty Haji Vs Moideenkutty — Contract and Commercial Disputes | 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.HARILAL

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THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938

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OP(C).No. 1846 of 2015 (O)

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OS 102/2008 OF MUNSIFF COURT, PARAPPANANGADI

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PETITIONER(S)/PETITIONER:

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MOIDEENKUTTY HAJI, AGED 68 YEARS, S/O. PANTHAKKAL ALAVIKUTTY HAJI, PONTHAKKAL HOUSE, KLARI AMSOM DESOM, TIRURANGAIDI TALUK, MALAPPURAM DISTRICT.

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BY ADVS.SRI.K.P.SUDHEER

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SRI.ARUN MATHEW VADAKKAN

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RESPONDENT(S)/RESPONDENTS:

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1. MOIDEENKUTTY, S/O. PANTHAKKAL MUHAMMED MASTER, PANTHAKKAL, KLARI AMSOM, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 501.

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2. KUNHAMMEDKUTTY,

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S/O. PANTHAKKAL MUHAMMED MASTER, PANTHAKKAL, KLARI AMSOM, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 501.

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*** 3. MARIYAKUTTY, W/O. PANTHAKKAL MUHAMMED MASTER, PANTHAKKAL, KLARI AMSOM, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 501. (EXPIRED)**

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*** IT IS RECORDED THAT R3 DIED AND R1 & R2 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED R3 AS PER ORDER DTD.23.3.2016 ON MEMO DTD.23.3.2016, CF 399/2016.**

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BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 1846 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 - TRUE COPY OF PLAINT DT. 02.4.2008 IN O.S NO. 102/2008 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI.

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P2 - TRUE COPY OF WRITTEN STATEMENT DT. 19.8.2008 FILED BY THE RESPONDENTS HEREIN IN OS NO. 102/2008 BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI.

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P3 - TRUE COPY OF IA NO. 265/2012 IN OS NO. 102/2008 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI.

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P4 - TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP (CIVIL) NO. 171/2013 DT 05.2.2013.

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P5 - TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DT. 20.9.2014.

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P6 - TRUE COPY OF THE PLAN OF THE ADVOCATE COMMISSIONER DT. 20.9.2014.

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P7 - TRUE COPY OF IA NO. 190/2015 IN OS NO. 102/2008 DT. 12.1.2015 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI.

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P8 - TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN EXT. P7 APPLICATION DT. 12.2.2015.

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P9 - TRUE COPY OF THE OBJECTION TO EXT. P5 AND P6 SUBMITTED BY THE RESPONDENTS DT. 15.12.2014.

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P10 - TRUE COPY OF THE ORDER IN IA NO. 190/2015 IN OS NO. 012/2008 DT. 19.6.2015 ON THE FILE OF THE MUNSIFFS COURT, PARAPPANANAGADI.

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RESPONDENT(S)' EXHIBITS: ------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

K.HARILAL, J.

O.P.(C). No.1846 of 2015

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Dated this the 23^rd day of June, 2016

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JUDGMENT

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The petitioner is the plaintiff in O.S. No.102/08 on

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the files of Munsiff's Court, Parappanangadi as well as the petitioner in I.A. No.190/15 filed therein. The above Interlocutory Application is filed seeking remittance of the commission report and plan to the Commissioner to ascertain the matters sought to be ascertained, as stated in the application. The respondents filed objection, contending that this is the 5^th application seeking remittance of the Commission Report and the report was remitted back earlier five times, on the application filed by the petitioner and the present application is intended for prolonging the disposal of the case only. After considering the application and the objection, in view of the present report and early report, the court below dismissed the application, by Ext.P10. The

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OP(C).1846/15 :2:

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legality and propriety of Ext.P10 are challenged in this Original Petition.

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Heard the learned counsel for the petitioner and learned counsel for the respondents.

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Going by the impugned order, it could be seen that this is the 5^th application seeking remittance of the commission report. After verifying the present commission application and all the earlier reports the court below arrived at a finding that all the previous commissioners and present commissioner had already reported the facts sought to be reported in the present application. I do not find any material to disbelieve the said finding of the court below.

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It is pertinent to note that the suit was one filed as early in the year 2008 and the present application is filed when the case was listed for trial on 5.2.2013 and the suit was removed from the list on the application filed by the petitioner. The previous conduct of the petitioner shows that the petitioner would never be satisfied with the report, unless the

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OP(C).1846/15 :3:

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Commissioner reports the matter as he desires. But this Court is of the opinion that the trial of the suit which was filed in the year 2008 cannot be stalled at

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the dissatisfaction of the petitioner on the commission report. But, I make it clear that the petitioner is at liberty to raise all the contentions against the commission report during the course of trial and if the court finds that the objection raised by the petitioner against the commission report is sustainable and valid, certainly, the court would remit the report back to the Commissioner so as to cure the defects in the commission report. But I further find that trial of the case need not be postponed for such a venture. In the above view of the matter, I do not find any reason to interfere with Ext.P10 order passed by the trial court. Hence this original petition will stand disposed of with the above observations.

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Sd/K. HARILAL, JUDGE

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okb.23/6

Moideenkutty Haji v. Moideenkutty

Case brief

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Moideenkutty Haji v. Moideenkutty

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