Disposed

Sebastian v. Thomas

Kerala HC22 Nov 2016OP(C)/2948/2016

Case brief

AI extract

What is this about?

A writ petitioner sought intervention under Article 227 to direct the Sub Court, Chavakkad to appoint a commissioner and pass orders on pending applications regarding trespass and damage to property. The High Court held that Article 227 could not direct the specific order, distinguishing precedents, but directed the lower court to expedite disposal within a specific timeframe.

What did the court decide?

The Sub Judge, Chavakkad is directed to consider and pass appropriate orders in I.A.1974/2016 and dispose of I.A.1975/2016 expeditiously by 25.11.2016.

Sebastian Vs Thomas — Civil Procedure and Limitation | 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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TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

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OP(C).No. 2948 of 2016 (O)

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AS 34/2015 OF SUB COURT, CHAVAKKAD.

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PETITIONER(S):

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1. SEBASTIAN, AGED 63 YEARS, S/O.KULANGARA VAREED, EDASSERY P.O, THALIKULAM,

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THRISSUR-680569.

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2. JOHNSON, AGED 45 YEARS, S/O.KULANGARA VAREED, EDASSERY P.O, THALIKULAM, THRISSUR-680569.

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BY ADVS.SRI.T.M.CHANDRAN

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SRI.P.R.NEELAKANDAN NAMBOODIRI SRI.S.SUJITH

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RESPONDENT:

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THOMAS, AGED ABOUT 66 YEARS, S/O.KULANGARA KOCHAPPU, EDSSERY P.O., THALIKULAM, THRISSUR-680569.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 2948 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 DATED 07/03/2011 IN O.S 294/2011 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD.

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P2 : TRUE COPY OF THE JUDGMENT DATED 11/08/2015 IN O.S 294/2015 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD.

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P3 : TRUE COPY OF THE PETITION DATED 14/11/2016 IN I.A 1974/2016 IN A.S NO.34/2015 ON THE FILE OF THE SUB COURT, CHAVAKKAD.

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P4 : TRUE COPY OF THE PETITION I.A.1975/2016 IN A.S 34/2015 ON THE FILE OF THE SUB COURT, CHAVAKKAD.

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RESPONDENT(S)' EXHIBITS:

NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K. RAMAKRISHNAN, J.

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....................................... O.P.(C).No.2948 of 2016

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Dated this the 22^nd day of November, 2016.

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JUDGMENT

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This is petition filed by the petitioners seeking intervention of this court to direct the Sub Court, Chavakkad to expedite the disposal of IA.Nos.1974/2016 and 1975/2016 in A.S.No.34/2015 of that court under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioners are the defendants in O.S.No.294/2011 on the file of the Munsiff Court, Chavakkad and that suit was filed by the respondent herein evidenced by Ext.P1 for permanent prohibitory injunction restraining the defendants from trespassing into plaint B schedule property or causing any obstruction to user of the same including Ext.C schedule pathway. The suit was decreed as per Ext.P2 judgment of the court below. The petitioners filed A.S.No.34/2015 before the Sub Court, Chavakkad against Ext.P2 judgment and the appellate court had allowed the appeal in part and modified the decree passed by the court below as revealed from the endorsement made in the A diary maintained in court.

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After the pronouncement of the judgment, the respondent trespassed into the property and committed extensive damage by

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O.P.(C) No.2948 of 2016

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cutting and removing the trees. So in order to ascertain the damage committed by the respondent, the petitioner filed I.A.1974/2016 for issue of a commission and I.A.1795/2016 for mandatory injunction, directing the respondent to restore the plaint schedule property to the original position. The court below is not passing any orders in those applications, so the petitioner has no other remedy, except to approach this court, seeking the following reliefs:

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i. call for the records relating to Exts.P1 to P4;

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ii. issue appropriate order directing the learned Sub Court, Chavakkad to pass an order in Ext.P3 petition I.A.1974/2016 in A.S.34/2015 by appointing an Advocate Commissioner to inspect the property in question forthwith and submit a report and plan as sought for in Ext.P3 petition;

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iii. issue an order directing the learned Sub Judge, Chavakkad to dispose of Ext.P4 petition I.A.1975/2016 in A.S.34/2015 after obtaining report and plan in Ext.P3 petition and

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iv. pass appropriate order as this Hon'ble Court deems fit and just and allow this original petition with compensatory costs.

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Considering the nature of relief claimed, this court feels

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that the petition can be disposed of at the admission stage itself after hearing the counsel for the petitioner Sri.T.M.Chandran and dispensing with notice to respondent.

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The counsel for the petitioner submitted that even after the disposal of the appeal, court has got power to pass appropriate orders to restore the position and to filing of the appeal and without getting a commission appointed, he may not be able to take action against the respondents as well. So he wants a direction to be given to the court below to appoint a commission to assess the damages caused.

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O.P.(C) No.2948 of 2016

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It is seen from the petition that the suit O.S.294/2011 was filed by the respondent herein before the Munsiff Court, Chavakkad for injunction in respect of plaint-B and C schedule pathway and as per Ext.P2 judgment, it was decreed by the court below in toto . Aggrieved by the same, the petitioners filed A.S.34/2015 before the Sub Court, Chavakkad and Sub Court, Chavakkad by judgment dated 11.11.2016 allowed the appeal in part and modified the decree of the court below. It is alleged in the petition that, this was revealed from the endorsement in the A-diary maintained by the court below and he has not obtained the decree or judgment though it was applied for. Immediately after disposal of the appeal, the respondent has trespassed into the property and committed extensive damage by cutting the trees in the property. So the petitioner filed the above two applications evidenced by Exts.P3 and P4 for appointment of a commissioner to assess the damage and also mandatory injunction directing the respondents to restore the original position of the plaint B and C schedule properties. The court below has not passed any orders. When an application has been filed by the court below and it is for that court to consider and pass appropriate orders in that application. This court cannot invoking the power under Article 227 of the Constitution of India, direct the court below as to the nature of the order that has to be passed in that application. The dictum laid down in the decision

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O.P.(C) No.2948 of 2016

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reported in Zachariah v. State of Kerala (1990(1) KLT 371) is not applicable to the facts of this case for the purpose of deciding the writ petition. Whether the power under Section 151 of the Code of Civil Procedure can be invoked or not has to be considered by the court below while considering the application filed. So this court feels that the petition can be disposed of directing the Sub Judge, Chavakkad to expedite the petitions within a time frame. So the petition is disposed of as follows:

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The Sub Judge, Chavakkad is directed to consider and pass appropriate orders in I.A.1974/2016 in A.S.34/2015 pending before that court, as expeditiously as possible, at any rate on the date on which it is now posted for hearing, namely on 25.11.2016 itself and thereafter dispose of the I.A.1975/2016 as expeditiously as possible.

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With the above direction and observation the petition is disposed of.

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Registry is directed to communicate this judgment to the concerned court by phone and then sent the order by fax immediately.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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cl & ss

Sebastian v. Thomas

Case brief

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Sebastian v. Thomas

Case brief

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