Allowed

Muhammed Haji v. Muhammedali

Kerala HC1 Mar 2017OP(C)/690/2014

Case brief

AI extract

What is this about?

The High Court set aside an order dismissing an application for remitting a survey officer's report. The court held that delay in paying fees should not bar evidence production and directed payment within 15 days.

What did the court decide?

The impugned order deleting the commission was set aside. The petitioner was directed to pay the batta within 15 days, and the trial court was directed to execute the survey within one month.

Muhammed Haji Vs Muhammedali — Civil Procedure and Limitation | Kerala HC (2017)

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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 P.SOMARAJAN

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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OP(C).No. 690 of 2014 (O)

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AGAINST THE ORDER IN OS 117/2009 of MUNSIFF COURT, PATTAMBI, DATED 03.02.2014

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PETITIONER : -

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MUHAMMED HAJI, S/O.KORAKATTIL SAIDALI, AGED 75 YEARS, RESIDING AT MUTHUTHALA AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.T.C.SURESH MENON

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SRI.P.S.APPU SRI.A.R.NIMOD SRI.SANIL JOSE

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RESPONDENTS : -

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MUHAMMEDALI, S/O.PADIKKAPARAMBIL AYAMU.

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SAINABHA, W/O.MUHAMMEDALI, BOTH ARE RESIDING AT MUTHUTHALA AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN 679 101.

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R1 & 2 BY ADV. SRI.R.SREEHARI

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 690 of 2014 (O)

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APPENDIX

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PETITIONER'S EXHIBITS : -

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EXHIBIT P1 : COPY OF THE REPORT AND SKETCH OF THE ADVOCATE COMMISSIONER DATED 12/8/2009.

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EXHIBIT P2 : COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 8/9/2009.

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EXHIBIT P3 : COPY OF IA NO.952/2013 IN OS NO.117/2009 ON THE FILE OF THE COURT OF THE MUNSIFF OF PATTAMBI DATED 22/10/2013.

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EXHIBIT P4 : COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN IA NO.952/2013 IN OS NO.117/2009 ON THE FILE OF THE COURT OF THE MUNSIFF OF PATTAMBI DATED 26/11/2013.

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EXHIBIT P5 : COPY OF THE ORDER IN IA NO.952/2013 IN OS NO.117/2009 ON THE FILE OF THE COURT OF THE MUNSIFF OF PATTAMBI DATED 3/2/2014.

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RESPONDENTS' EXHIBITS : - NIL.

// TRUE COPY //

P.A. TO JUDGE

DMR/-

P. SOMARAJAN, J.

O.P.(c) No. 690 of 2014

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Dated this the 01^st day of March, 2017

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JUDGMENT

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This petition is against Exhibit P5 order passed in I.A.No.952 of 2013 in O.S.No.117 of 2009 of the Munsiff Court, Pattambi, by the original plaintiff/petitioner. The said application is filed for remitting back the Commissioner's report and sketch in order to measure out the property with the help of retired Surveyor and to prepare a measurement

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plan showing the location of property, its measurement, the location of the building constructed in the property of the defendant and to locate the encroachment, if any, made over

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the property belonging to the plaintiff. Earlier, another application in I.A.No.1208 of 2009 was filed for the very same purpose and it was allowed by the trial court directing the petitioner/plaintiff to deposit Commissioner's batta as well as Surveyor's batta about four years ago. It was not deposited in the time. It is after four years the present application is filed for the very same purpose, which has ended in dismissal by its order dated 03.02.2014, against which this petition is filed.

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O.P.(c) No. 690 of 2014

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Issuance of a Commission for the purpose of

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conducting local investigation and to measure out the property are process of adducing evidence and hence unless there is gross violation, the court should take a liberal approach in dealing with those applications bearing the principal of advancement of justice in mind. It is not at all advisable to curtail the right to adduce evidence unless there is gross negligence which would out way the entitlement of party concerned. In the present case, earlier an application was filed, which was allowed. It was not executed due to the non payment of Commissioner's batta and Surveyor's batta. As such, the second application was preferred.

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Bearing the above principal in mind, I am of the view that the delay, if any, caused in making payment of Commissioner's batta/Surveyor's batta shall not be permitted to stand in the way of adducing evidence in the suit and hence the order passed by the lower court in I.A.No.952 of 2013 is hereby set aside. The petitioner is permitted to pay the Commissioner's batta as well as Surveyor's batta as ordered in earlier application within a period of 15 days from the date of receipt of a copy of this judgment with an enhancement of

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O.P.(c) No. 690 of 2014

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Rs.2,000/- towards Commissioner's batta. The Surveyor's batta shall be fixed by the trial court and the trial court shall dispose of the suit at the earliest by giving specific direction to the Commissioner and Surveyor to execute their work within a period of one month from the date of issuance of the order. The application in I.A.No.952 of 2013 shall be treated as part of earlier application in I.A.No.1208 of 2009 and hence no separate order is required in the above said I.A.

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Original petition is disposed of accordingly. No order as

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to costs.

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P. SOMARAJAN, JUDGE

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DMR/-

Muhammed Haji v. Muhammedali

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Muhammed Haji v. Muhammedali

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