Allowed

K.P.Moideen Kutty v. K.Krishna Naik

Kerala HC19 Jun 2018OP(C)/255/2018

Case brief

AI extract

What is this about?

In an original petition challenging the dismissal of an application to re-open evidence, the High Court set aside the impugned order. It granted the petitioner an opportunity to adduce evidence regarding the identity of the plaint schedule property with reference to the Commissioner's report, subject to the payment of costs.

What did the court decide?

Impugned order dismissing the application to re-open evidence set aside; petitioner granted opportunity to adduce evidence regarding property identity subject to payment of Rs.10,000 costs.

K.P.Moideen Kutty Vs K.Krishna Naik — Property and Title | Kerala HC (2018)

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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 SATHISH NINAN

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TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940

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OP(C).No. 255 of 2018

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--------------------AGAINST THE ORDER IN IA NO.86/2018 IN OS 328/2015 of PRINCIPAL MUNSIFF COURT, KASARAGOD

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----------

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PETITIONER/PETITIONER/PLAINTIFF :

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K.P.MOIDEEN KUTTY S/O KUTTYALI, AGED 65 YEARS, KOVVAL PUTHIYAPURAYIL HOUSE, SREEKANDAPURAM.P.O, SREEKANDAPURAM AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.

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BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH

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RESPONDENTS/RESPONDENTS/ DEFENDANTS:

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1. K. KRISHNA NAIK S/O KORAGA NAIK, AGED 66 YEARS, CHOTTATHADKA, PALLATHADKA.P.O, BADYADKA VILLAGE, KASARAGOD DISTRICT-671551.

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2. BHASKARA NAIK S/O K.KRISHNA NAI, AGED 32 YEARS, CHOTTATHADKA, PALLATHADKA.P.O, BADYADKA VILLAGE, KASARAGOD DISTRICT-671551.

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R1 & R2 BY ADVS. SRI.P.B.KRISHNAN

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SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE KUM.R.ANUSREE

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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bp 21/6/2018

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OP(C).No. 255 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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--------------- EXHIBIT P1:	-------- TRUE COPY OF THE PLAINT IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT, KASARAGOD
EXHIBIT P2:	TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT KASARAGOD.
EXHIBIT P3:	TRUE COPY OF THE FINAL REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT, KASARAGOD
EXHIBIT P4:	TRUE COPY OF THE PLAN PREPARED BY THE ADVOCATE COMMISSIONER IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT, KASARAGOD
EXHIBIT P5:	TRUE COPY OF THE DEPOSITION OF PW1 (PLAINTIFF) IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT, KASARAGOD
EXHIBIT P6:	TRUE COPY OF THE DEPOSITION OF CW1 IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT, KARARAGOD
EXHIBIT P7:	TRUE COPY OF THE PETITION IN I.A.NO.86/2018 IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT, KASARAGOD
EXHIBIT P8:	TRUE COPY OF THE COUNTER I.A.NO.86/2018 IN O.S.NO.328/2015
EXHIBIT P9:	TRUE COPY OF THE PETITION IN I.A.NO.87/2018 IN O.S.NO.328/2015 ON THE FILE OF MUNSIFF COURT, KASARAGOD
EXHIBIT P10:	TRUE COPY OF THE COUNTER I.A.NO.87/2018 IN O.S.NO.328/2015
EXHIBIT P11:	ORDER IN I.A.NO.86/2018 IN O.S.NO.328/2015
EXHIBIT P12:	ORDER IN I.A.NO.87/2018 IN O.S.NO.328/2015
RESPONDENT'S EX	HIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

bp 21/6/2018

SATHISH NINAN, J.

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....................

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O.P.(C) No. 255 of 2018

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.................................

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Dated this the 19^th day of June, 2018

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JUDGMENT

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The dismissal of an application seeking to re-open

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the evidence is under challenge in this original petition, by the plaintiff in the suit.

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The suit is one for mandatory injunction to

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remove the alleged illegal construction on the eastern side of plaint schedule item No.1, and for permanent prohibitory injunction. The trial in the suit commenced. Plaintiff and the defendants adduced evidence. The evidence was closed and the suit was posted for hearing. At that time, the plaintiff filed application to re-open the evidence and to re-call PW1. The reason stated in the application seeking to re-open the evidence is that, when the plaintiff was examined as PW1, he omitted to specify as to which among the plots in the

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Commissioner's plan constitute the plaint schedule property. A copy of the Commissioner's report and plan

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O.P.(C) No. 255 of 2018

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have been appended to this Original petition as Exts.P3 and P4. The Commissioner has reported that plots A, F, G and H constitute the plaint-'A' schedule property and plots C, E, I, J, K and L constitute the plaint-'B' schedule property. The contention of the plaintiff appears to be that what has been reported by the Commissioner is correct. As rightly pointed out by the respondents-defendants the plaintiff should have adduced evidence regarding the identity of the property at the time when he was examined.

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However, considering the fact that even as noticed by the Commissioner, plaint items A and B are comprised of different plots, I feel that in the interests of justice, an opportunity could be granted to adduce evidence regarding the identity of the property with reference to the Commissioner's report available in the suit. Of course, this shall be subject to terms.

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In the result, this original petition is allowed.

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Order dated 18.01.2018 in I.A.No.86 of 2018 is set aside. Both the plaintiff and the defendants shall be given opportunity to adduce evidence with regard to the

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O.P.(C) No. 255 of 2018

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identity of the plaint schedule property with reference to the Commissioner's report and plan already available on record. This shall be on condition that the petitioner pays an amount of Rs.10,000/- (Rupees Ten thousand only) as costs to the counsel appearing for the respondents in this Court, within a period of one week from today. It is made clear that if the costs as directed above is not paid, the original petition will stand dismissed. Considering the fact that the suit is of the year 2015, I am sure that every endevour will be made by the court below to dispose of the suit at the earliest.

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sd/- SATHISH NINAN, JUDGE

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AMV/20/06/2018

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The direction in the judgment dated 19.06.2018 in O.P. (C) No.255/2018 to pay cost of Rs.10,000/- (Rupees ten thousand only) to the counsel appearing for the respondents before this Court is complied with by the counsel for the petitioner within the stipulated time vide memo bearing c.f.No.2380/2018 dated 06.07.2018.

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sd/Registrar (Judicial)

K.P.Moideen Kutty v. K.Krishna Naik

Case brief

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K.P.Moideen Kutty v. K.Krishna Naik

Case brief

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