Dismissed

Thomas Francis @ Josekutty v. Thresiamma

Kerala HC1 Nov 2016OP(C)/2665/2016

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the petitioner challenged the lower court's order rejecting an application to remit a prior commissioner's report to ascertain specific damages to a compound wall caused by trees. The High Court dismissed the petition.

What did the court decide?

The writ petition is dismissed in limine; the impugned order dismissing the application to remit the commissioner's report is upheld.

Thomas Francis @ Josekutty Vs Thresiamma — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938

¶5

OP(C).No. 2665 of 2016 (O)

¶6

ORDER IN IA.863/2016 IN OS.NO.473/2012 OF PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA

¶7

PETITIONER(S):

¶8

THOMAS FRANCIS @ JOSEKUTTY, CHEKKAYIL HOUSE, EDATHUVA VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT.

¶9

BY ADVS.SRI.JOMY GEORGE

¶10

SRI.DEEPAK MOHAN SMT.A.MINI JOSEPH KUM.M .ANJU THOMAS

¶11

RESPONDENT(S):

¶12

THRESSIAMMA, D/O DEVASSIA, PADINJAREVETTIL HOUSE, EDATHUA PANCHAYAT, KUTTANAD, ALAPPUZHA DISTRICT, PIN - 688 001.

¶13

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

msv/

¶15

OP(C).No. 2665 of 2016 (O)

¶16

APPENDIX

¶17

PETITIONER(S)' EXHIBITS

¶18

EXHIBIT P1	THE TRUE COPY OF THE PLAINT IN O.S NO 473/2012 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA.
EXHIBIT P2	TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE RESPONDENT IN O.S NO 473/2012 BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P3	THE TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A NO 1912/2012 IN O.S NO 473/2012 BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P4	TRUE COPY OF THE I.A NO 1605/2014 FILED BY THE RESPONDENT BEFORE THE HON'BLE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P5	TRUE COPY OF THE I.A NO 2491/2014 FILED BY THE RESPONDENT BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P6	THE TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFF BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P7	TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A NO 4745/2014 IN O.S NO 473/2012 BEFORE THE MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P8	TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P9	TRUE COPY OF THE I.A NO 863/2016 FILED BY THE PETITIONER/PLAINTIFF IN O.S NO 473/2012 BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P10	TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT DEFENDANT IN THE I.A NO 863/2016 IN O.S NO 473/2012 BEFORE THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P11	TRUE COPY OF THE ORDER DATED 14-07-2016 IN I.A NO 863/2016 IN O.S NO 473/2012 OF THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.

¶19

RESPONDENT(S)' EXHIBITS:

¶20

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

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

K. RAMAKRISHNAN, J.

¶26

O.P.(C).No.2665 of 2016

¶27

....................................................... Dated this the 1^st day of November, 2016.

¶28

JUDGMENT

¶29

This is a petition filed by the petitioner challenging Ext.P11 order passed by the court below under Article 227 of the Constitution of India.

¶30

It is alleged in the petition that the petitioner/plaintiff filed Ext.P1 suit as OS.No.473/2012 on the file of the Principal Munsiff Court, Alappuzha for a mandatory injunction directing the respondent to cut and remove all the trees standing in the property of the defendant on the northern side of the plaint schedule property very close to the compound wall which is likely to cause damage to the compound wall and if it is not removed, permit the plaintiff to remove the same and recover the expenses from the defendant. The defendant filed Ext.P2 written statement denying the allegations and stating that none of the trees standing in the property causes any threat to the safety of the compound wall and she prayed for dismissal of the suit. Along with the suit, an ex parte commission was taken out and the commissioner filed Ext.P3 report. The petitioner as well as the defendant filed applications to appoint a commissioner to ascertain certain aspects and the applications filed by the respondent are produced and marked as Exts.P4 and P5. The petitioner and the respondent filed Ext.P6 and P7 objections. The court below allowed the

¶31

O.P.(C).No.2665 of 2016

¶32

¶33

application and commissioner inspected the property and submitted Ext.P8 report. The petitioner filed Ext.P9 application to remit the commissioner's report and the respondent filed Ext.P10 objection to the same. The court below by Ext.P11 order dismissed the application which is being challenged by the petitioner by filing this petition.

¶34

Heard Sri. Jomy George, learned counsel appearing for the petitioner.

¶35

Learned counsel appearing for the petitioner submitted that unless the things mentioned in Ext.P9 application are ascertained by the commissioner, it will cause hardship to the petitioner. So it is necessary to allow the application.

¶36

It is an admitted fact that the plaintiff filed a suit for mandatory injunction directing the defendant to cut and remove certain tress standing in her property. The defendant filed a written statement denying the allegations in the plaint. Along with the suit, a commission was taken out and the commissioner filed Ext.P3 report. Thereafter the petitioner as well as the defendant filed an application to appoint a commissioner to ascertain certain facts which was narrated in the petition itself and that was allowed and the commissioner after inspection submitted Ext.P8 report with a plan showing the lie of the property, existence of the compound wall and the trees etc. It is thereafter that the

¶37

O.P.(C).No.2665 of 2016 3

¶38

petitioner filed Ext.P9 application to remit the commissioner's report to state certain aspects namely (1) to ascertain the broken portion of the compound wall (2) to ascertain the damage caused to the compound wall (3) which are the trees causing damage to the compound wall and also ascertain whether they should be cut and removed and the said trees will have to be shown in the sketch. It may be mentioned here that in the second commissioner's report namely Ext.P8 the commissioner had located the trees standing near the compound wall and also the distance between the compound wall and the trees and the existence of the compound wall. It is true that in the plan those things were not mentioned. So that alone is not a ground to remit the commissioner's report as the plan will forms part of the report. So the court below can consider those aspects on the basis of the evidence to be adduced at the time of deciding the issue as to which are the tress should be cut and removed, whether those trees are causing any danger to the safety of the compound wall or the building in the property of the plaintiff etc. So under such circumstances, the court below was perfectly justified in coming to the conclusion that there is no necessity to remit the commissioner's report and the parties can adduce evidence on that aspect. So considering the circumstances, this court do not find any reason to interfere with the impugned

¶39

O.P.(C).No.2665 of 2016

¶40

¶41

Ext.P11 order. That will not affect the right of the plaintiff to adduce evidence on those aspects on the basis of the objections and consideration of the same by the court below and pass appropriate orders on the basis of the evidence adduced regarding the reliability or otherwise of the commissioner's report on those aspects.

¶42

With the above directions and observations, this petition is dismissed in limine. Registry is directed to communicate a copy of this judgment to the court below at the earliest.

¶43

Sd/-

¶44

K. RAMAKRISHNAN, JUDGE.

¶45

Thomas Francis @ Josekutty v. Thresiamma

Case brief

What is this about?

What did the court decide?

Thomas Francis @ Josekutty v. Thresiamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Beena Vs Prabhuraj

M/S.Malayalam Communications Ltd. Vs M/S.Opm Dream Mill Cinemas and Entertainment Ltd.

Mohandas Vs Muhammed Ali

Dr. Blessy Mathew Vs Varghese. P.J

Dr. Prejusha.R Vs Dr. Vivek.S

M/S Chemmarathil Cashew Co. Vs M/S Chi Commodities Handlers Inc.