Petitioner challenged order under Article 227 seeking appointment of earlier Commissioner for property identification amidst remittal of report. Court rejected petition, allowing new Commissioner to proceed within specific directions.
Appointment of original Commissioner sought by petitioner was rejected; new Commissioner to proceed as directed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938
OP(C).No. 509 of 2016 (O)
O.S.NO.915/2012 OF IIND ADDITIONAL SUB COURT, ERNAKULAM.
PETITIONER/PETITIONER/PLAINTIFF:
ASHA MUKUNDAN,
W/O.LATE M.G.MUKUNDASWAR, AGED 60 YEARS, MAROTICKKAL HOUSE, PACHALAM, ERATTAKULANGARA ROAD, KOCHI-682012.
BY ADVS.SRI.B.N.SHIVSANKAR SMT.MEGHA MUKUNDASWAR
RESPONDENT(S):
--2--
--2--
OP(C).No. 509 of 2016 (O) -------------------------
5.BABU, S/O.GOPALA RAO, PLASSERY PARAMBIL HOUSE, NO.48/201 A, ELAMAKKARA, KOCHI-26. R1 & R2 BY ADVS.SRI.KRISHNADAS P.NAIR SMT.K.L.SREEKALA SMT.B.SABITHA (DESOM) SMT.C.R.REKHA SRI.K.A.SHAJI MATHEW R3 BY ADVS.SRI.P.T.JAVALIN JOSEPH SRI.M.T.ARAVINDAKSHAN R4 BY ADV. SRI.S.B.PREMACHANDRA PRABHU R5 BY ADVS.SRI.DINESH R.SHENOY SRI.SANIL JOSE
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C).No. 509 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS:
| EXHIBIT | P1- | TRUE COPY OF THE | AMENDED PLAINT. |
|---|---|---|---|
| EXHIBIT | P2- | TRUE COPY OF THE I.A. NO.8491/2004 |
AMENDED COMMISSION APPLICATION, . |
| EXHIBIT | P3- | TRUE COPY OF THE DATED 23/10/2009. |
ORDER IN F.A.O. NO.104/2008 |
| EXHIBIT | P4- | TRUE COPY OF THE O.S. NO.1291/1999 |
COMMISSION REPORT IN , DATED 19/12/2011. |
| EXHIBIT | P5- | TRUE COPY OF I.A. | NO.4158/2012. |
| EXHIBIT | P6- | TRUE COPY OF THE DATED 24/2/2015. |
ORDER IN I.A. NO.4158/2012 |
| EXHIBIT | P7- | TRUE COPY OF THE DATED 24/2/2015. |
ORDER IN I.A. NO.2999/2014 |
| EXHIBIT | P8- | TRUE COPY OF I.A. | NO.1496/2015 DATED 8/4/2015. |
| EXHIBIT | P9- | TRUE COPY OF I.A. I.A.NO.4158/2012 |
NO.3916/2015 IN DATED 28/9/2015. |
| EXHIBIT | P10- | TRUE COPY OF ORDE I.A. NO.4158/2012 |
R IN I.A. NO.3916/2015 IN DATED 28/9/2015. |
| EXHIBIT | P11- | TRUE COPY OF THE | NOTICE DATED 14.7.2016. |
| RESPOND ------- |
ENT(S)' ------- |
EXHIBITS: --------- |
NIL |
| //TRUE COPY// |
P.S. TO JUDGE
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K. RAMAKRISHNAN, J
O.P.(C). No. 509 OF 2016
Dated this the 29th day of July, 2016
JUDGMENT
This is a petition filed by the petitioner challenging Ext. P10 order passed by the IInd Additional Sub Judge, Ernakulam under Article 227 of the Constitution of India.
from trespassing into the property.
O.P.(C). No. 509 OF 2016 2
O.P.(C). No. 509 OF 2016 3
was allowed and Smt. M. Chandralekha was appointed as the Advocate Commissioner. She inspected the property and submitted Ext. P4 report and plan.
O.P.(C). No. 509 OF 2016 4
present suit and necessary amendments were also made. The defendants 1 and 2 filed an interlocutory application for remitting the Commissioner's report and when the suit was returned for representation before the proper court, that application was also returned along with the suit. Thereafter, the application was allowed by the IInd Additional Sub Judge, Ernakulam.
O.P.(C). No. 509 OF 2016 5
she herself can be appointed instead of the new commissioner. But, by the impugned order that petition was dismissed by the court below. This is being challenged by the petitioner by filing this petition before this Court.
O.P.(C). No. 509 OF 2016 6
committed by that commissioner. The present commissioner is trying to execute the work afresh that will upset the earlier findings arrived at by the earlier commissioner. So, it is necessary in the interest of justice to appoint the same commissioner for that purpose.
O.P.(C). No. 509 OF 2016 7
file a fresh report disturbing the measurements made by the earlier commissioner is of no substance. Even if the petitioner has got any grievance in the subsequent commissioner's report, she is at liberty to file an application to set aside the commissioner's report, if there are any discrepancies in the earlier commissioner's report and the present commissioner's report which is not helpful for disposing the suit. The counsel for the petitioner submitted that the batta has to be paid to the present commissioner by the defendants 1 and 2, who filed the application for remitting the commissioner's report. It is needless to say that normally the payment of batta will have to be paid by the person who sought for remitting the commissioner's report and not by the petitioner herein. So even without specifying the same, the
O.P.(C). No. 509 OF 2016 8
liability to pay the remuneration for the
commissioner will be on the defendants 1 and 2 at whose instance the commissioner's report is remitted and ultimately who has to bear the cost will be decided depending on the result of the suit.
With the above direction and observation, the petition is disposed of.
K. RAMAKRISHNAN JUDGE
DCS
2 issues framed by the court
Whether the petitioner can be appointed as the Commissioner instead of the newly appointed one since the earlier commissioner is available.
Who should bear the liability to pay the remuneration for the newly appointed Commissioner.
1 provisions across 1 enactments
Asha Mukundan
Anitha
K.R. Ramesh
A.A. Ponappan
A.V. Ramachandran
Babu
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
