Petitioner challenged the trial court's order rejecting an application for a fresh commission to ascertain specific facts about land passage and width in a suit, arguing serious prejudice. This court held the trial court's reasons were not perverse or illegal and dismissed the petition.
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 ALEXANDER THOMAS
TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939
OP(C).No. 621 of 2018
I.A.NO.5507/2017 IN O.S.NO.835/2016 OF PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA.
------PETITIONER(S)
A.A.GEORGE, AGED 63, S/O. LATE ANTHAPPAN, ARACKAL, SEA VIEW WARD, ALAPPUZHA.
BY ADVS.SRI.DEEPAK MOHAN SMT.A.MINI JOSEPH
RESPONDENT(S):
1. JAYAKRISHNAN, NIRMALA, CULLEN ROAD, ALAPPUZHA DISTRICT - 688 001.
2. SUMITHRA SUDHEER, NIRMALA, CULLEN ROAD, ALAPPUZHA DISTRICT - 688 001.
3. INDIRA PROFULLAKUMAR, NIRMALA, CULLEN ROAD, ALAPPUZHA DISTRICT - 688 001.
4. SUBHADRA SURESH, NIRMALA, CULLEN ROAD, ALAPPUZHA DISTRICT - 688 001. 5. DEVARAJ SAMBASIVAN, NIRMALA, CULLEN ROAD, ALAPPUZHA DISTRICT - 688 001.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TS
OP(C).No. 621 of 2018 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
| EXHIBIT P1 TRUE COPY OF THE PLAINT 06.10.2016 BEFORE THE PR ALAPPUZHA FILED BY C.K. PETITIONER. |
IN O.S.NO.835/2016 DATED INCIPAL MUNSIFF COURT, NIRMALA AGAINST THE |
|---|---|
| EXHIBIT P2 TRUE COPY OF THE WRITTEN THE DEFENDANT IN O.S.NO. BEFORE THE PRINCIPAL MUN |
STATEMENT FILED BY 835/2016 ON JANUARY, 2017 SIFF COURT, ALAPPUZHA. |
| EXHIBIT P3 TRUE COPY OF THE REPORT 18.10.2016 SUBMITTED BY COMMISSIONER. |
AND SKETCH DATED THE ADVOCATE |
| EXHIBIT P4 TRUE COPY OF THE I.A.NO. FILED BY THE PLAINTIFFS MUNSIFF COURT, ALAPPUZHA |
3843/2016 IN O.S.NO.835/2016 BEFORE THE PRINCIPAL DATED 14.11.2016. |
| EXHIBIT P5 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCAT |
DATED 17.03.2017 E COMMISSIONER. |
| EXHIBIT P6 TRUE COPY OF THE I.A.NO. FILED BY THE DEFENDANT B MUNSIFF COURT, ALAPPUZHA |
5507/2017 IN O.S.NO. 835/2016 EFORE THE PRINCIPAL DATED 18.12.2017. |
| EXHIBIT P7 TRUE COPY OF THE ORDER D 5507/2018 IN O.S.NO.835/ COURT, ALAPPUZHA. |
ATED 08.01.2018 IN I.A.NO. 2016 OF THE PRINCIPAL MUNSIFF |
RESPONDENT(S)' EXHIBITS - NIL
/TRUE COPY/
PS TO JUDGE
TS 15/03/2018
ALEXANDER THOMAS, J.
O.P.(C) No.621 of 2018
Dated this the 6th day of March, 2018
JUDGMENT
The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as
follows :
O.P.(C) No.621/18
: :2::
O.S.No.835 of 2016 filed by the petitioner/defendant herein. According to the petitioner, the suit has been filed suppressing vital material facts and according to him, the defendant is having a passage from the southern side and that not even a cycle could be plied to the said alleged road and if the matters in Exhibit-P6 I.A. are not ascertained, there will cause serious prejudice and miscarriage of justice to the petitioner. Following are the matters which are sought to be ascertained in Exhibit-P6 I.A.No.5507 of 2017 in O.S.No.835 of 2016.
Earlier, an Advocate Commissioner had submitted a detailed report as per Exhibit-P3 dated 18.10.2016. It is the indisputable case of the petitioner that he had never raised any objections to Exhibit-P3 report and had never resort any remit to the Advocate Commissioner for submission of a fresh report on any other points now sought to be canvassed. Later, the plaintiffs had again moved an application as per
: :3::
O.P.(C) No.621/18
Exhibit-P4 and pursuant to the directions of the trial court, yet another report was submitted by the Advocate Commission as per Exhibit-P5 dated 9.3.2017, on some of the additional points that was sought to be ascertained at the instance of the plaintiffs. Even at that stage, the petitioner/defendant has not moved his little finger to make any such motion as the one now sought to be made at Exhibit-P6 at a very late stage. That apart on the merits, the trial court has given necessary reasons for rejecting the plea in Exhibit-P6 I.A. Those reasons are dealt with in paragraphs-7 and 8 of the impugned order, which read as
follows :
“7. I have gone through the commission report filed on 18.10.2016. From the records, it can be seen that the petitioner herein who is the defendant in the suit has not so far filed any objection to the said report filed on 18.10.2016. In the said report, the way from the southern side of the defendant's property is shown as portion A and B in the rough sketch. Correspondingly, a detailed description of the width, length and direction is provided in page Nos.6 and 7 of the report. It would leave no room for doubt as to the nature, length, width and lie of the way seen by the Commissioner from southern side of the property of the defendant. It is true that the learned Commissioner did not show the width of the way in the rough sketch. But the rough sketch is supplemental to the report and should be read along with it. It is important to note that the Commissioner did not show the width and length of item No.2 as well in the rough sketch. But it is stated with certainty in the report. Whether the way from southern side of the property of the (shown as A and B) is motorable or not is a matter depending on evidence and the nature of the vehicles to be plied. No further explanation is necessary in this regard. It is only a matter of appreciation of evidence which cannot be left to the discretion of the commissioner.
8. The location, lie etc. of item No.2 are stated elaborately in the report and has shown precisely in the rough sketch attached to the report. Therefore, the matters sought to be ascertained were already ascertained by the Commissioner and without expressing any dissatisfaction, another commission for the same purpose cannot be issued. The purpose of issuance of commission for local inspection is for elucidating any matter in dispute. As already pointed out, the matters were already ascertained and reported by the learned Advocate Commissioner. The case is posted on 1.3.2018 and is included in the special list for trial. Now that, the attempt of the petitioner/defendant is to protract the trial of the suit and to delay the final decision. Therefore, there is no ground to issue another commission for the purpose sought by the petitioner. Thus
: :4::
O.P.(C) No.621/18
the point is found against the petitioner.”
Court is of the view that the said reasonings given by the trial court
cannot be said to be perverse or illegal. Hence no interference is called for in the matter.
Accordingly, the Original Petition (Civil) will stand dismissed.
ALEXANDER THOMAS JUDGE
csl
2 issues framed by the court
Whether the High Court should interfere in the rejection of an application for a fresh commission for local inspection by the trial court.
Whether the reasons given by the trial court for dismissing the application to protract the trial are perverse or illegal.
A.A.George
Jayakrishnan
Sumithra Sudheer
Indira Proffullakumar
Subhadra Suresh
Devaraj Sambasivan
Alexander Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
