Dismissed

Proper Products Private Limited v. S.Mohandas

Kerala HC8 Aug 2016OP(C)/227/2016

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ petition under Article 227 challenging an order where the civil court dismissed a prayer to restrict cross-examination. The High Court held that since the defendant proving the affidavit had died, cross-examination need not occur. It advised parties to file concise affidavits to avoid delaying disposal of matters. The petition was disposed of without cos

What did the court decide?

The petition was disposed of as the defendant had died, making cross-examination unnecessary; the matter is subjudice for the transfer of right to legal heirs.

Proper Products Private Limited Vs S.Mohandas — Property and Title | 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 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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OP(C).No. 227 of 2016 (O) --------------------------

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OS 191/2013 of MUNSIFF COURT, ALUVA -----------

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PETITIONER(S):

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PROPER PRODUCTS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE INDIAN COAMPANIES ACT FORMERLY HAVING ITS REGISTERED OFFICE AT ROOM NO.418, WARD NO.41, NO.4, BALLAVDAS STREET, BARA BAZAR, KOLKATTA-700 007 AND BRANCH OFFICE AT DOOR NO.33/2328 C, PONNURUNNI, CHALIKKAVATTOM, N.H.BYE PASS, ERNAKULAM, KOCHI-19 AND PRESENTLY HAVING ITS REGISTERED OFFICE AT ROOM NO.201, 2ND FLOOR, OMKARMAL MARKET, 161, RAVINDRA SARINI, KOLKATTA, 700 007, WEST BENGAL STATE, REPRESENTED BY ITS DIRECTOR AND AUTHORISED AGENT SRI.MAHESH KUMAR MINTRI, SON OF M.P.MINTRI, AGED 57 YEARS, RESIDING AT HOUSE NO.28/2151 A, MAHAMANORAM HOUSE, CHILAVANNOOR ROAD, KADAVANTHARA.P.O., ERNAKULAM, KOCHI-20.

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BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED

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RESPONDENT(S):

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*** 1. S.MOHANDAS, SON OF LATE K.N.SANKUNNY PILLAI, AGED 66 YEARS, RESIDING AT HOUSE NO.17, "MOHANAM", RIVER GARDENS, NEERAMANKARA, KAIMANAM.P.O., NEMOM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT-695040. (DIED) LRS IMPLEADED**

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2. K.K.MOHANDAS, AGED 64 YEARS, SON OF KARUNAKARAN, ADVOCATE, RESIDING AT HOUSE NO.27, "VAISHAGHAM", V.V.NAGAR, NEDUMBRAM, N.C.C.ROAD, PEROORKADA.P.O., KUDAPPANAKUNNU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT-695005.

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3. C.K.RADHAKRISHNAN, AGED 61 YEARS, SON OF G.KUTTAPPAN PILLAI, RESIDING AT "CHITTOOR HOUSE", BEARING VATTIYOORKAVU PANCHAYATH, DOOR NO.9/1069, KULASEKHARAM, KODUNGANNOOR, VATTIYOORKAVU.P.O., VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT-695013.

.....2/-

..2..

OP(C).No. 227 of 2016 (O)

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4. VISHNU RADHAKRISHNAN, AGED 27 YEARS, SON OF RADHAKRISHNAN, RESIDING AT "CHITTOOR HOUSE", BEARING AT VATTIYOORKAVU PANCHAYATH, DOOR NO.9/1069, KULASEKHARAM, KODUNGANNOOR, VATTIYOORKAVU.P.O., VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT.

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*** ADDL.R5 TO R7 IMPLEADED**

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5. LATHA, WIFE OF LAST S.MOHANDS, RESIDING AT HOUSE NO.17, 'MOHANAM', RIVER GARDENS, NEERAMANKARA, KAIMANAM P.O., NEMOM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT.

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6. MANU MOHAN, S/O.LATE S.MOHANDAS, RESIDING AT HOUSE NO.17, 'MOHANAM', RIVER GARDENS, NEERAMANKARA, KAIMANAM P.O.,NEMOM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT.

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7. MIDHUN MOHAN, S/O.LATE S.MOHANDAS, RESIDING AT HOUSE NO.17, 'MOHANAM', RIVER GARDENS, NEERAMANKARA, KAIMANAM P.O.,NEMOM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT.

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THE LEGAL HEIRS OF THE DECESASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 7 AS PER ORDER DATED 12//4/2016 IN IA.502/2016

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R2,R5,R6 BY ADV. SRI.PRAKASH P.GEORGE

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 227 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1TRUE COPY OF THE PLAINT IN O.S.191/2013 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT , ALUVA.

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P2TRUE COPY OF THE EXPARTE LOCAL COMMISSION REPORT DATED 12.06.2013 SUBMITTED BY THE ADVOCATE COMMISSIONER JINO GEORGE IN EXT.P1 SUIT.

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P3TRUE COPY OF THE JOINT WRITTEN STATEMENT DATED 25.07.2014 FILED BY RESPONDENTS 1 AND 2IN EXT.P1 SUIT.

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P4TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 TO EXT.P2 REPORT.

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P5THE TRUE COPY OF I.A.1589/2014 FILED BY RESPONDENTS 1 AND 2 FOR SETTING ASIDE EXT.P2 REPORT.

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P6TRUE COPY OF THE PROOF AFFIDAVIT DATED 12.01.2016 FILED BY THE 1ST RESPONDENT IN EXT.P5 APPLICATION.

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P7THE TRUE COPY OF I.A.97/2016 FILED BY THE PETITIONER IN EXT.P5 APPLICATION.

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P8THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT TO EXT.P7 APPLICATION.

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P9CARBON COPY OF THE ORDER DATED 18.01.2016 PASSED BY THE HONOURABLE MUNSIFF'S COURT, ALUVA IN EXT.P7 APPLICATION.

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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.227 of 2016

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....................................................... Dated this the 8^th day of August, 2016.

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JUDGMENT

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This petition is filed by the petitioner challenging Ext.P9 order passed by the court below in IA.No.97/2016 in OS.No.191/2013 on the file of the Munsiff Court, Aluva under Article 227 of the Constitution of India.

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The petitioner is the plaintiff in OS.No.191/2013 which was filed for the relief of injunction restraining the respondents and their men from creating any documents in respect of the plaint schedule property and trespassing into the plaint schedule property. A commission was taken out for the purpose of ascertaining the location and present stage of the properties and the commissioner filed Ext.P2 report and the sketch plan. The respondents filed Ext.P3 joint written statement and also filed objection to the ex parte local commission report as Ext.P4 along with IA.No.1589/2014 seeking to set aside the same as Ext.P5. Since the case is being prolonged, the petitioner filed OP(C) No.992/2015 before this court for an early disposal of Ext.P1 suit and the same as disposed of directing the court below to expedite the disposal of the case within six months from the date of

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reopening of the court after summer vacation. As per the request of the Munsiff, the time has been extended from time to time. The court below is now considering Ext.P5 application

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O.P.(C).No.227 of 2016

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filed by the respondents to set aside the commissioner's report. The commissioner was examined as PW1. The first respondent herein filed Ext.P6 proof affidavit in which he had reiterated all the contentions raised by him in the written statement. So the petitioner filed I.A.No.97/2016 for permitting him to cross examine the first defendant to the extent which is required for the purpose of disposal of Ext.P5 alone and defer further cross examination of the witnesses on other aspects which are relating to the other contentions and defence taken by the respondents claiming right in the property at the time of trial. The first respondent filed Ext.P8 objection to the same. After considering the objections, the court below passed the impugned order against which the present petition has been filed.

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Heard Sri.Balagopalan, learned counsel appearing for the petitioner and Sri. Prakash P.George, learned counsel appearing for the respondents.

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The suit was one filed by the petitioner for injunction. An ex parte commission was taken to report about the present status and location of the property and the commissioner submitted Ext.P2 report. When the respondents entered appearance, they filed a joint written statement denying the allegations in the plaint and also setting up some right in the property. They also filed objection to the ex parte commission report and also filed

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O.P.(C).No.227 of 2016

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Ext.P5 petition to set aside the same. The petitioner herein filed objection to the same. Thereafter as part of the enquiry in Ext.P5 application, the commissioner was examined as PW1 and the first respondent herein filed Ext.P6 proof affidavit reiterating all his contentions in the written statement and also reiterating the objections raised to the commissioner's report as well. In order to avoid lengthy cross examination, it appears that the petitioner filed Ext.P7 application as IA.No.97/2016 for permitting the counsel for the petitioner to restrict the cross examination required for considering Ext.P5 application alone and defer further cross examination of witness on other aspects at the time of trial. Ext.P8 objection was filed and the learned Munsiff dismissed that application as follows:

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“Heard the petitioner and the respondent. Perused the records. If the defendants/respondents have filed proof affidavit in which irrelevant matters are stated, that c an only be at the risk of the respondents and it will not cause any prejudice to the plaintiff/petitioner. As rightly pointed out, the petitioner has no authority to dictate to the respondents the evidence that has to be adduced. The grievance of the petitioners can be termed as one which is concerned with he appreciation of evidence. At this stage, I don't think that the court would be justified in directing the respondents to file proof affidavit in a particular manner. The other reliefs are also not allowable. Hence the petition is dismissed. No costs.”

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When the application came up for hearing today, learned

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O.P.(C).No.227 of 2016

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counsel for the respondents submitted that the first respondent, who filed the proof affidavit is no more. So there is no question of cross examining that witness arises. The petitioner herein will have to take steps to implead the legal heirs of the original first respondent and thereafter they must be given an opportunity to file fresh proof affidavit of the person among the legal heirs who is intended to be examined afresh. So cross examination of the first respondent on the basis of the impunged affidavit does not arise at this stage. So considering this aspect this court feels that the petition can be disposed of as follows:

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Since the first respondent who filed the proof affidavit is no more, there is no question of cross examining that witness arises. Only after impleading the legal heirs of the first respondent , the person who is going to be examined for this purpose has to be considered among the legal heirs and it is that person to file afresh proof affidavit. At that time, the petitioner can raise all the objections which he wants to raise. Further it is always advisable for the parties to file proof affidavit in a matter which requires only a limited enquiry only regarding those aspects alone in the proof affidavit instead of filing a lengthy proof affidavit reiterating all those things which are not necessary for considering the question to be considered in dispute by the courts. That will only waste the time of the court. It is for the parties as well as the counsel to

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O.P.(C).No.227 of 2016

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consider these aspects while filing proof affidavit. The purpose of filing the proof affidavit was incorporated by the legislature only to avoid delay in disposal of the cases and wastage of time on making unnecessary statements before the court at the time of evidence. But unfortunately that is not being practically done.

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With those observations, this petition is disposed of.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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Proper Products Private Limited v. S.Mohandas

Case brief

What is this about?

What did the court decide?

Proper Products Private Limited v. S.Mohandas

Case brief

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