Dismissed

J.S.Monimon v. D.R.Johndas

Kerala HC17 Oct 2018OP(C)/3168/2015

Case brief

AI extract

What is this about?

The High Court dismissed a petition seeking interference with an impugned order allowing the appointment of a Commissioner with a Surveyor to measure property a money lender sought to show was covered by sale deeds. The court held the measure was necessary to identify properties for the defendant and caused no prejudice, directing the trial court to dispose of the suit within six months.

What did the court decide?

Petition dismissed with direction to Sub Judge to dispose of suit after obtaining Commissioner's report within six months.

J.S.Monimon Vs D.R.Johndas — Civil Procedure and Limitation | 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 ASHOK MENON

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WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

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OP(C).No. 3168 of 2015

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AGAINST THE ORDER/JUDGMENT IN OS 267/2012 of SUB COURT,NEYYATTINKARA

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PETITIONER/S:

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1 J.S.MONIMON AGED 44 YEARS S/O.SIMSON, VASANTHA BHAVAN, NELLIKKAKUZHI, KANJIRAMKULAM, THIRUVANANTHAPURAM.

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2 MINI C.CHACKO W/O.J.S.MONIMON OF DO-DO-.

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BY ADVS. SRI.BLAZE K.JOSE SMT.K.J.JISMA SMT.RESHMA G.MENON SRI.M.RAJESH

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RESPONDENT/S:

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D.R.JOHNDAS S/O.DASAYYAN, DAS BHAVAN, PONGIL, MULLUVILA PO, ATHIYANNOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695 121.

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BY ADVS. SRI.V.G.ARUN (K/795/2004)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2018, THE COURT ON 17.10.2018 PASSED THE FOLLOWING:

OP(C)3168/2015

JUDGMENT

The petitioners are the plaintiffs in O.S.No.

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267/2012 of the file of the Sub Court, Neyyattinkara, who

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impugns the learned Sub Judge's Order in I.A.No.887/2015, allowing an application under Order 26, Rule 9, C.P.C. filed by the defendants.

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The facts in a nutshell required for disposing

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this petition are thus:

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The respondent-defendant is a money lender, who lend some money to the plaintiffs and insisted on execution of sale deeds as security for the money lend, undertaking to reassign the property as and when the debt discharged. For a sum of Rs.19,51,000/- received, the plaintiffs executed

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three documents. The property mentioned in these documents consisted of a two-storied shop building and the residence of the petitioners. It is the averment of

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the petitioners that certain shop rooms bearing Nos. KJL

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VII 63, 64, 1279 to 1283 were excluded from those deeds. The understanding that the property would be re-conveyed on discharge of debt was reduced to writing in an

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OP(C)3168/2015

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agreement dated 10.08.2011. Although the petitioners were willing to discharge the entire debt, the respondent

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refused to re-assign the property and hence the

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plaintiffs were constrained to approach the Court and filed O.S.No.267/2012 for a declaration that the three

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documents purported to be sale deeds were not intended to be acted upon and were merely executed with the intention

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to secure the debts incurred by the plaintiffs. The residence remained in the possession of the plaintiffs, who filed an interlocutory application as I.A.No.1055/2012 for temporary injunction to prevent them from being dispossessed, and a favourable interim relief was granted on 04.09.2012. However, in consequence to the defendant registering a false Crime No.904/2012 at Kanjiramkulam Police Station, the plaintiffs were removed by force from the property on 22.09.2012, and the 1^st plaintiff was arrested and remanded. Thereafter, the defendant filed I.A.No.1124/2012 seeking a temporary injunction against the plaintiffs from trespassing into

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the plaint schedule property. While the interim injunction already granted in favour of the plaintiffs was dismissed, the defendant's application was allowed,

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vide common order dated 11.10.2012. The defendant

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attempted to induct strangers into the property.

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Aggrieved by that order, the 1^st petitioner filed F.A.O. No.346/2012 before this Court. Vide order dated

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04.12.2012 at Ext.P3, the impugned order was modified by this Court and the parties were directed to maintain status quo . It was directed that the defendant will have to continue in possession of all the properties, including the buildings covered by the documents and will

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also be entitled to collect rent from the rented premises, subject proper accounting for the rental and other other income, if any, derived, pending litigation. The residential building was, according to the defendant,

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leased out to one Victoria on a monthly rent Rs.2,000/-.

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The plaintiffs were permitted to be occupied the residential building for a monthly occupational charge of Rs.3000/-. The s tatus quo as ordered by this Court was to

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operate till the disposal of the suit, which was directed to be expedited untrammeled by the findings in the order.

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Aggrieved by this order, the defendant approached the

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Hon'ble Supreme Court, but vide order at Ext.P4, the

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S.L.P. was withdrawn. It is the averment of the

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OP(C)3168/2015

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plaintiffs that with the intention to take over possession of the shop rooms, which were not included in the sale deeds as stated earlier, the defendant filed I.A.No.917/2013 for police protection. That application was allowed by the learned Sub Judge and the plaintiffs

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once again approached this Court by filing O.P.(C) No.1352/2015. This Court found that room Nos.63, 64,1279, 1280 to 1283 do not form part of the sale deeds as evidenced from the copies produced and hence the police protection order was modified and the O.P. was allowed holding that the police protection shall not include the aforementioned rooms. The order reads thus:

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“In the result, this Original Petition (Civil) is allowed in part by modifying Exhibit P10. Presently, Exhibit P10 shall not include room Nos.1279, 1280 and 1281 as well as room Nos.63, 64, 1282 and 1283. The question whether room Nos.1279, 1280 and 1281 were really intended to be transferred through the sale deed in question has to be decided by the court below on evidence. The court below shall dispose of the suit on merits, as expeditiously as possible, at any rate within the period of six months from the date of receipt of a copy of this judgment.”

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The plaintiffs aver that with the intention to protract

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the litigation, the defendant filed an application before the trial court seeking to measure the property covered

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OP(C)3168/2015

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by the sale deeds by appointing an Advocate Commissioner

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with the help of a Surveyor. The plaintiffs contend that there is no counter-claim raised by the defendant. There is already a Commission report with a rough sketch and plan before the Court, and therefore, no purpose other than protracting the suit would result if a Commission with a Surveyor is appointed. However, the learned Sub Judge allowed the application, I.A.No.887/2015 vide order at Ext.P6. It is this order, which is impugned by the plaintiffs on the following grounds.

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The finding that the survey plan and a

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Commissioner's report is essential for avoiding disputes between the parties, is a perverse opinion. There is

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already a rough sketch and a report before the Court, which were submitted on the basis of the title deeds, purportedly executed by the plaintiffs. No objection, whatsoever, has been filed on the said Commission report,

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nor has he requested that the report be set aside. The measurement of the property will not serve any purpose other than harassing the plaintiffs. There is already a

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direction by this Court to dispose of the suit within a period of six months, and therefore, the trial court has

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gone wrong in allowing the application by appointment of

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the Commissioner to inspect and measure the property with

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the help of Surveyor. Hence, the petitioners herein seek interference of this Court.

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plaintiffs would submit that the appointment of a

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Commissioner for measuring the property with a Surveyor

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will not be any help, but will only result in protracting

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the litigation. The suit is for a declaration that the three documents executed by the plaintiffs were not

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actually deeds of sale, but were securities for the loan incurred by the plaintiffs. Hence, if the documents are

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found to be valid assignment deeds, the properties

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covered by those documents will have to go to the

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defendant. If it is found otherwise, the defendant will have to vacate the entire property, including the portion

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which is in dispute as to whether possession of those

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rooms were handed over or not. Hence, for the purpose of ascertaining whether certain rooms were handed over to

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the defendant in part performance of the agreement or not

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is something which cannot be ascertained by the Commissioner. It is pointed out by the learned Counsel

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for the plaintiffs that the documents are apparently concocted, because the building numbers found in the documents produced by the defendant do not find mention in the certified copies obtained by the plaintiffs from the Sub Registry Office. The learned Counsel for the defendant submits that in view of the challenge raised against the sale deeds, the defendant has no obligation to prove that the property described in the sale deeds were actually included in the sale. The argument of the learned Counsel for the defendant is that unless certain portion of the building is expressly excluded from the sale, all those property coming within the four boundaries of the property described in the sale deeds

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would come within the assignments. The earlier Commissioner did not measure the property in accordance with the survey plan. The cardinal question that would arise for consideration after the finding regarding the genuineness of the documents would be, whether the room Nos.63, 64, 1279 to 1281 were not intended to be assigned or not and the Court will have to take a decision only consequent to the finding pertaining the validity of the sale deeds. Hence, the Commission inspection with the

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assistance of the Surveyor is essential for such determination; is the submission made.

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Heard both sides.

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The litigation has been pending before the trial court since 2012. The defendant has gone upto the

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Honourable Supreme Court on certain issues of dispute,

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while this Court has been frequented often by the

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petitioners. In Ext.P5 order this Court has

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categorically stated that the question whether room

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Nos.1279, 1280 and 1281 were really intended to be

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transferred through the sale deeds in question has to be decided by the court below on evidence. The permission granted to the plaintiffs to remain possession of the

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house and certain shop rooms is only pendente lite . Measuring the property with Surveyor's help will not, in any way, cause any prejudice to the plaintiffs. Whether, it will help the defendant in resolving the dispute is a question to be decided by the trial court. There is a

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direction from this Court to dispose of the suit expeditiously as possible, within a period of six months.

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That period has already over now. This C.R.P. has been pending here for more than three years and by this time,

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the Commissioner could have easily complete his work and

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the trial court could have also dispose of the suit. The

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earlier Commission inspection was not with the assistance of the Surveyor. There is absolutely no prejudice caused to the plaintiffs by deputing a Surveyor for identifying

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the property. It is only after the properties are identified with the help of a Surveyor, can the defendant substantiate his dispute of inclusion or exclusion of certain properties from the sale deeds. The learned Sub

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Judge was perfectly justified in allowing the

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application. I find no reason, whatsoever, to interfere with the order and the petition is dismissed.

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The learned Sub Judge is directed to dispose of

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the suit, as expeditiously as possible, after obtaining the Commissioner's report, which I think would be possible within a period of six months from the date of

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receipt of this judgment. No order as to costs.

Sd/-

ASHOK MENON

JUDGE

dkr

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NEWS PAPER REPORT IN DESHABHIMANI DAILY DT 25-10-2012 EXHIBIT P2 TRUE COPY OF THE NOTICE PUBLISHED BY THE ACTION COUNCIL EXHIBIT P3 TRUE COPY OF THE COMMON JUDGMENT IN FAO NO.346 & 362 OF 2012 DT 4-12-2012 EXHIBIT P4 TRUE COPY OF THE ORDER IN SLP NO.17615 AND 17616 OF 2013 DT 2-10-2013. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN OP(C) NO.1352 OF 2015 DT 14-7-2015 EXHIBIT P6 TRUE COPY OF THE ORDER IN IA NO.887/2015 IN OS NO.267 OF 2012 DT 6-11-2015 OF THE SUB COURT, NEYYATTINKARA.

J.S.Monimon v. D.R.Johndas

Case brief

What is this about?

What did the court decide?

J.S.Monimon v. D.R.Johndas

Case brief

What is this about?

What did the court decide?

What the court decided

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