Partly allowed

St. Georges Forane Church v. M/S. Edumart

Kerala HC5 Mar 2018OP(C)/535/2018

Case brief

AI extract

What is this about?

The High Court modified the impugned order dismissing a withdrawn application in a property suit. It granted the petitioners liberty to file a fresh comprehensive application within ten days, after which the lower court would consider it afresh. Further proceedings were deferred pending this fresh application.

What did the court decide?

Impugned order modified to permit withdrawal of application with liberty to file fresh comprehensive application within ten days for fresh consideration; further proceedings deferred.

St. Georges Forane Church Vs M/S. Edumart — 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 ALEXANDER THOMAS

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MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939

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OP(C).No. 535 of 2018

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OS.82/2016 of SUB COURT, ERNAKULAM

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PETITIONERS:

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1 ST. GEORGES FORANE CHURCH, EDAPPALLY, REP. BY ITS VICAR FR.KURIAKOSE ERAVIMANGALAM, S/O.KURIAN, AGED 64 YEARS, EDAPPALLY P.O., ERNAKULAM DISTRICT, KOCHI, PIN 682 024.

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2 MARTIN KANDATHIL, AGED 52 YEARS, S/O.VARKEY, KAIKKARAN, ST.GEORGE FORANE CHURCH, EDAPPALLY P.O.-682 024, ERNAKULAM (DIS).

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3 XAVIER PATATHIL, AGED 60 YEARS, S/O.JOSEPH, KAIKARAN, ST. GEORGES FORANE CHURCH, EDAPPALLY-682 024, ERNAKULAM (DIS).

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BY ADVS.SRI. TONY PETTAH SMT.SREEJA SOHAN.K. SMT.GAYATHRI KRISHNAN

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RESPONDENTS:

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1. M/S. EDUMART, ASHARAFI BUILDINGS, CHANDAPADY, THIRURANGADI P.O. PIN 676 306, A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER, SRI.MUSTHAFA KOORMATH, S/O.LATE ABDUL RAHIMAN, AGED 47 YEARS, RESIDING AT KOORMATH HOUSE, CHANDAPADY, THIRURANGADI P.O.,PIN 676 306.

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2. MUSTHAFA KOORMATH, AGED 47 YEARS, S/O.LATE ABDUL RAHIMAN, MANAGING PARTNER, M/S.EDUMART, ASHARAFI BUILDINGS, CHANDAPADY, THIRURANGADI P.O. PIN 676 306, RESIDING AT KOORMATH HOUSE, CHANDAPADY, THIRURANGADI P.O.,PIN 676 306.

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BY ADVS. K A RASHID (B/O)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 535 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT.P1 AMENDED PLAINT IN O.S.NO.82/2016 BEFORE THE LEARNED SUB JUDGE ERNAKULAM DT.6/3/2016
EXHIBIT.P2 WRITTEN STATEMENT FILED IN O.S.NO.82/2016 BEFORE THE LEARNED SUB JUDGE ERNAKULAM, DT. 1/8/2016
EXHIBIT.P3 COMMISSIONER REPORT IN O.S.NO.82/2016 BEFORE THE LEARNED SUB JUDGE ERNAKULAM, DT. 5/7/2017
EXHIBIT.P4 ADDITIONAL WRITTEN STATEMENT FILED IN O.S.NO.82/2016 BEFORE THE LEARNED SUB JUDGE, ERNAKULAM, DATED 17/10/2017.
EXHIBIT.P5 I.A.NO.5306/2017 IN O.S.NO.82/2016 BEFORE THE LEARNED SUB JUDGE ERNAKULAM DT.5/11/2017
EXHIBIT.P6 OBJECTION FILED IN I.A.NO.5306/2017 IN O.S.NO.82/2016 BEFORE THE LEARNED SUB JUDGE ERNAKULAM DT.17/11/2017
EXHIBIT.P7 ORDER IN I.A.NO.5306/2017 IN O.S.NO.82/2016 PASSED BY THE LEARNED SUB JUDGE, ERNAKULAM DT.15.12.2017.

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RESPONDENT(S)' EXHIBITS

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NIL

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TRUE COPY P.S. TO JUDGE

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27.3.2018

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ALEXANDER THOMAS, J.

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==================

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O.P(C).No. 535 of 2018

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==================

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Dated this the 5^th day of March, 2018

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J U D G M E N T

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The prayers in this Original Petition (Civil) filed under the enabling

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provisions contained in Art.227 of the Constitution of India are as follows:

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“a) To Sett aside Exhibit P7 order dt: 15/12/2017 in I.A.No.5306/2017 in O.S.No.82/2016 passed by the learned 2^nd additional Sub Judge, Ernakulam.

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b) To Direct the learned 2^nd additional Sub Judge Ernakulam to pass appropriate order afresh in Exhibit P-5 application in O.S.No. 82/2016 pending before him.”

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Heard Smt.K.Sreeja Sohan, learned counsel appearing for the petitioners/plaintiffs. In the nature of the order that is proposed to be passed in this petition, notice to the respondents/defendants will stand dispensed with.

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The petitioners herein are the plaintiffs and the respondents herein are the defendants in Ext.P-1 O.S.No.82/2016 filed before the Court of the Sub Judge, Ernakulam. The suit is for recovery of possession of plaint schedule property leased to the defendants on a registered lease and for recovery of rent due. It is the case of the petitioners/plaintiffs that the defendants in violation of the permission granted to a building with temporary structure to construct as provided in the lease deed in violation of the approved plan and permit, have made permanent construction by

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O.P(C)535/18 - : 2 :-

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making foundation of huge concrete piles to a depth of 20 meters and pile caps. It further stated that the lease was terminated for violation of the terms of lease. It is further pointed out that the plaint was subsequently amended incorporating claim for damages. That before amendment, a commission report was filed and the amendment necessitated additional points to be reported by commissioner with assistance of expert, it is averred. That hence an application for the said purpose was filed by plaintiffs. The said petition was dismissed by the trial court with the finding that there is already a commission report and that the commissioner had stated that there is no building and hence no purpose will be served. It is stated that in the report, the commissioner had not stated that there is no building. The additional points sought to be reported in the petition are totally different and relating to damages. That elucidation of these material factual points was highly necessary for a proper and just disposal of the case. Therefore, it is contended by the petitioners that the court below has not adverted to any of these crucial facts and the pleadings in the amended plaint and the averments in the affidavit supporting the application. Therefore, it is urged that the abovesaid finding in Ext.P-7 rejection order requires interdiction at the hands of this Court, etc. It is in the above circumstances that the petitioners have filed the instant Original Petition (Civil) with the aforementioned prayers.

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The prayers in Ext.P-5 I.A. are as follows:

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O.P(C)535/18 - : 3 :-

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“..... to issue a direction to the commissioner in the above said suit to make a further inspection of the plaint schedule property along with the assistance of the same expert already appointed and report on the additional following points:

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1. Physical measurement of the building in the plaint schedule

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Sketch made out of the physical measurement taken as item 1 above.

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3. Comparison of approved plan with that of the physical sketch prepared as 2 above.

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Probable cost of restoration of site as on the date of lease.

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5. Such other matters which may be requested by the petitioner at the time of inspection.”

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The impugned Ext.P-7 order dated 15.12.2017 has been

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rendered by the Sub Judge, Ernakulam, on Ext.P-5 I.A.No. 5306/2017 in the said O.S. Para 2 of the affidavit dated 5.11.2017 accompanying Ext.P-5

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I.A.No. 5306/2017, reads as follows:

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“2. In the above suit the plaintiff have taken out a commission for local inspection with the assistance of an expert Engineer Sri.Devidharan Chartered Engineer, and the commission has submitted its report dt.5.7.2017 the plaint was amended thereafter incorporating relief for damages. In the circumstances some additional points also require to be reported or explained by the expert and the commissioner. The measurements of the foundation are not included in the report. Though the report would say that the foundation is different from the details of drawings in the building permit it is not explained as to the area and side measurements apart from the nature of foundation and the material used. These are very much important and highly necessary since the foundation as made in the plaint schedule property is for a totally different building form (sic) the approved plan and this is a very much material and disputed fact. For ascertaining these facts further inspection and report from the commissioner is necessary and the commissioner may be directed to make a further local inspection of the plaint schedule property again with the assistance of the same expert and report on the Physical measurement of the building in the plaint schedule, make a Sketch out of the physical measurement taken, a Comparison of approved plan with that of the physical sketch prepared and Probable cost of restoration of site as on the date of lease and such other matters which may be necessary and may be requested for at the time of inspection. These points are highly necessary for a just and proper decision on the disputes in the above suit. No prejudice will be caused to the other side. An application for the above purpose is therefore filed herewith.”

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6. In Ext.P-6 objections filed by the defendants to Ext.P-5 I.A., it

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is inter alia stated that there is no building in the plaint schedule property

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O.P(C)535/18 - : 4 :-

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and only a foundation was constructed, etc. The court below as per Ext.P-7 order has held that the Advocate Commissioner has already filed a report stating that there is no building in the plaint schedule property and that therefore, no purpose will be filed by this I.A. The impugned Ext.P-7 order reads as follows:

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“ORDER

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Heard. The Advocate Commissioner has already filed report stating that there was no building in Plaint Schedule Property.

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Hence no purpose will be served by this I.A.

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Hence I.A. is dismissed.”

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Smt.K.Sreeja Sohan, learned counsel appearing for the petitioners/ plaintiffs would submit on the basis of the instructions of her party that all the relevant and full details, which were required in support of the prayer in Ext.P-5 application, have not been stated cogently in the affidavit accompanying Ext.P-5 application and that it has not been properly stated in that affidavit that now there is no building in the plaint schedule property and that it has proceeded on the premise that the foundation is different from the details in the drawings in the building permit and that the report would say that the foundation is different from the details of the drawings in the building permit, which is not explained as to the area and site measurement apart from the nature of the foundation in the material used, etc. Therefore, it is submitted by the learned counsel appearing for the petitioners/plaintiffs that the leave may be granted to the

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O.P(C)535/18 - : 5 :-

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petitioners to withdraw Ext.P-5 I.A.No. 5306/2017 with liberty to file fresh and comprehensive application with a detailed affidavit stating all the relevant aspects of the matter to pin point the matters that are sought to be ascertained through the Advocate Commissioner, etc. and that the said I.A. may be directed to be considered afresh by the court below after hearing both sides, as otherwise it will cause serious prejudice to the petitioners, etc.

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In the light of the above submission made on behalf of the petitioners, it is ordered that Ext.P-5 I.A.No. 5306/2017 will stand dismissed as withdrawn with liberty to the petitioners to file a comprehensive application with a detailed affidavit touching on all relevant aspects of the matter for the proper and effective consideration of the court below concerned. Accordingly, the impugned Ext.P-7 order will stand modified with the direction that Ext.P-5 application will stand so dismissed as withdrawn with the abovesaid liberty as stated herein above. If such an application is filed by the petitioners afresh within ten days from the date notified for receiving certified copy of this judgment, then the court below will consider such I.A. afresh after hearing both sides and pass appropriate orders in accordance with law. It is made clear that this Court has not entered into the merits of the controversy and the entire matter is left to the independent consideration of the court below concerned. Until orders are passed on such fresh application as directed herein above, further proceedings in

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O.P(C)535/18 - : 6 :-

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O.S.No.82/2016 on the file of the Court of the Sub Judge, Ernakulam will stand deferred. However, it is made clear that in case the petitioners do not file a fresh application within the abovesaid time limit, as directed herein above, then the benefit of this direction will lose its efficacy. Needless also to say, the case may be listed for evidence depending upon the orders that may be passed on the said fresh application as observed herein above.

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The petitioners will produce a certified copy of this judgment before the court below concerned for necessary information.

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With these observations and directions, the above Original Petition (Civil) stands finally disposed of.

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Sd/-

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sdk+

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ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

St. Georges Forane Church v. M/S. Edumart

Case brief

What is this about?

What did the court decide?

St. Georges Forane Church v. M/S. Edumart

Case brief

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