Partly allowed

Nabeesa v. Abdul Jabbar @ Jabbar

Kerala HC9 Mar 2018OP(C)/653/2018

Case brief

AI extract

What is this about?

This Court set aside an impugned order dismissing an application to remit a commission report. The court directed the matter to be remitted to the trial court for fresh consideration within two weeks, clarifying that this does not hinder enforcement of existing injunctions.

What did the court decide?

Impugned order set aside; matter remitted to trial court for fresh consideration within two weeks.

Nabeesa Vs Abdul Jabbar @ Jabbar — Civil Procedure and Limitation | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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FRIDAY, THE 9TH DAY OF MARCH 2018 / 18TH PHALGUNA, 1939

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OP(C).No. 653 of 2018 --------------------OS 11/2017 OF MUNSIFF COURT, ALATHUR

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PETITIONER

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NABEESA, W/O.ABDUL KAREEM SAHIB, RESIDING AT KAK HOUSE, CHUNDAKADU, KAVASSERY AMSOM DESOM, ALATHUR TALUK.

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BY ADVS.SRI.K.ABDUL JAWAD SRI.U.MUHAMMED MUSTHAFA SMT.A.GRANCY JOSE SRI.M.K.PRASANTH KUMAR

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RESPONDENT:

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ABDUL JABBAR @ JABBAR, COMPANY EMPLOYEE, S/O.SAITHALAVI, RESIDING AT AL-AMEEN HOUSE, TOTTUMPALLA, PAZHAMBALAKODE, PAZHAMBALAKODE DESOM, ALATHUR TALUK.

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BY ADV. SRI SAIJO HASSAN (NO MEMO)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V.

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OP(C).No. 653 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 PLANT IN O.S.11/2017 FILED BEFORE THE MUNSIFF'S COURT, ALATHOOR.
EXHIBIT P2-	TRUE COPY OF THE COMMISSION REPORTS IN I.A.56/17 IN O.S.11/2017 FILED BEFORE THE MUNSIFF'S COURT, ALATHOOR.
EXHIBIT P3-	TRUE COPY OF THE COMMISSION REPORTS IN I.A.107/17 IN O.S.11/2017 FILED BEFORE THE MUNSIFF'S COURT, ALATHOOR.
EXHIBIT P4-	TRUE COPY OF THE OBJECTION TO COMMISSION REPORT IN O.S.11/2017 FILED BEFORE THE MUNSIFF'S COURT, ALATHOOR. DATED 14.2.17.
EXHIBIT P5-	TRUE COPY OF THE JUDGMENT DATED 20/12/2017 IN O.P.(C)NO.2791/17 ON THE FILE OF THIS HON'BLE COURT.
EXHIBIT P6-	TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM, FILED BY THE DEFENDANT.
EXHIBIT P7-	TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PLAINTIFF.
EXHIBIT P8	TRUE COPY OF THE INTERROGATORIES DELIVERED IN O S 11/2017 FILED BEFORE THE MUNSIFF'S COURT, ALATHOOR.
EXHIBIT P9:	TRUE COPY OF THE REPLY TO THE INTERROGATIONS IA 230/2018 IN OS 11/2017 FILED BEFORE THE MUNSIFF'S COURT ALATHOOR.
EXHIBIT P10:	TRUE COPY OF THE APPLICATION IN OS 11/2017 FILED BEFORE THE MUNSIF COURT, ALATHOOR.
EXHIBIT P11	TRUE COPY OF THE OBJECTION IN IA 231/2018 IN OS 1/2017 FILED BEFORE THE MUNSIFF'S COURT, ALATHOOR.
EXHIBIT P12	TRUE COPY OF ORDER DATED 7/2/2018 IN IA 231/18 IN OS 11/2017 ON THE FILE OF MUNSIFFS COURT ALATHOOR.
RESPONDENTS EXH	IBITS: NIL

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/TRUE COPY/

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K.V. P.S.TO JUDGE 19.03.2018

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ALEXANDER THOMAS, J.

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O.P(C) No.653 of 2018

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Dated this the 9^th day of March, 2018

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J U D G M E N T

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The prayer in this Original Petition (Civil) is as follows:

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“............pleased to stay all further proceedings in O.S.No.11/17, on the file of Munsiff Court, Alathur pending the disposal of O.P(Civil).

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Heard Sri.K.Abdul Jawad, the learned counsel appearing for the petitioner and Sri.Saijo Hassan, the learned counsel appearing for the respondent.

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The petitioner herein is the plaintiff in O.S.No.11/2017 on the file of the Munsiff's Court, Alathur. The defendant has sought for interim mandatory injunction to restore the staircase and the said prayer of the defendant was granted by the trial court, which has been confirmed by the appellate court. This Court has not interfered with the said orders in Ext.P5 judgment dated 20.12.2017 rendered in O.P.No.2791/2017 wherein it was directed that the suit itself should be disposed of within a time frame. The defendant was allowed to file a written statement on or before

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8.1.2018. Thereafter the defendant had filed a written statement to the

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O.P(C) No.653 of 2018 :2:

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counter claim and had also secured answers to the interrogatories. Therefore, the petitioner would contend that ascertainment of certain facts became very essential more so, particularly, after the defendant had filed his counter claim after filing of the written statement and certain aspects also became necessary to be ascertained after the petitioner had secured answers to the interrogatories. Accordingly, the petitioner had filed Ext.P10 I.A. No.231/2018 in O.S.No.11/2017 praying for remitting Ext.P3 report to the Advocate Commission and to ascertain the points raised therein. The trial court has rejected the said application as per Ext.P12 order. This order is under challenge.

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After having heard both sides, this Court expressed the view that the observations made by the trial court in Ext.P12 order, dismissing Ext.P10 interlocutory application does not appears to be correct in as much as the situation should have been considered in the light of the crucial facts that the defendant had filed a counter claim, long after the submission of the first ex-parte commission report. Moreover, the petitioner has also contention that the matters sought to be ascertained in Ext.P10 interlocutory application are necessary in the light of the answers that was secured to the interrogatories.

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Prima facie this Court is of the view that the respondent has

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O.P(C) No.653 of 2018 :3:

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no serious objection to grant the prayer made in Ext.P10 provided this Court would clarify that the further pendency of the suit, on account of the consideration of the prayers in Ext.P10 interlocutory application, shall not stand in the way of the respondent/defendant in seeking enforcement of the interim mandatory injunction already secured in their favour, which has not been interfered by this Court in Ext.P5 judgment.

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Accordingly, it is ordered that the impugned Ext.P12 order will stand set aside and the matter is remitted to the trial court for consideration afresh of the prayer made by the petitioner in Ext.P10. Necessary orders should be passed on Ext.P10 interlocutory application after hearing both sides, without much delay within two weeks from the date of production of a certified copy of this judgment. The petitioner will produce a certified copy of this judgment before the trial court for necessary information.

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With these observations and directions, this Original Petition (Civil) will stand disposed of.

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Sd/- ALEXANDER THOMAS JUDGE

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ab.

Nabeesa v. Abdul Jabbar @ Jabbar

Case brief

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Nabeesa v. Abdul Jabbar @ Jabbar

Case brief

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