Disposed

P.J.Mathew v. P.J.Kuriachan

Kerala HC21 Jun 2022OP(C)/100/2021

Case brief

AI extract

What is this about?

The Court directed the trial court to consider the petitioner's application to set aside a previous Advocate Commissioner report and appoint a new one before deciding the pending final decree application filed in 2014, citing the urgency due to the second respondent's advanced age of 88 years.

What did the court decide?

Directed the court below to consider the petitioner's application (Ext.P18) and objection (Ext.P19) to the commissioner report, and pass orders on it before deciding the final decree application.

P.J.Mathew Vs P.J.Kuriachan — Property and Title | Kerala HC (2022)

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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 C.S.DIAS

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TUESDAY, THE 21ST DAY OF JUNE 2022 / 31ST JYAISHTA, 1944
OP(C) NO. 100 OF 2021

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AGAINST THE ORDER DATED 22.12.2020 IN I.A NO.1 OF 2020 IN OS
40/2008(FDA) OF SUB COURT, PALA

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PETITIONER:

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P.J.MATHEW

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AGED 62 YEARS

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S/O JOSEPH ALIAS OUSEPH, RESIDING AT PUTHANAPRAKUNNEL
HOUSE, ST. ANTONYS ROAD, THAIKOODAM, VYTILA
P.O.ERNAKULAM DISTRICT, PIN-682 019.

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BY ADV S.BIJU (KIZHAKKANELA)

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RESPONDENTS:

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1P.J.KURIACHAN
AGED 51 YEARS

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S/O JOSEPH, RESIDING AT 31/148/E, BELLINA, BHUVANESWARI
ROAD, VYTILA P.O.ERNAKULAM DISTRICT, PIN-682 019.

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2JOSEPH ALIAS OUSEPH,
AGED 88 YEARS

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S/O MATHAI, RESIDING AT PUTHANAPRAKUNNEL, THALANAD
KARA, POONJAR VADAKKEKKARA VILLAGE, MEENACHIL TALUK,
PALA, KOTTAYAM DISTRICT, PIN-686 580.

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BY ADVS.
SRI.BABY THOMAS
SHRI.GAJENDRA SINGH RAJPUROHIT
SRI.K.D.ZACHARIAS
SRI.K.ANIL JOSEPH
SMT.MARIAMMA JOSEPH
SRI.BIJU GEORGE

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2022,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P (C) NO. 100 OF 2021 2

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Dated this the 21^st day of June, 2022

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JUDGMENT

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The original petition is filed to set aside the order dated 22.12.2020 in I.A. No.1/2020 in O.S No.40/2008 (FDA) (Exhibit P16) passed by the Court of the Subordinate Judge, Pala.

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The petitioner’s case, in brief, in the memorandum of original petition is that, he is the second defendant in the above suit. The petitioner and the first respondent are the children of second respondent. The second respondent has executed two settlement deeds in favour of the first respondent and the petitioner. There is a residential building in the property. The building is in a dilapidated condition. The second respondent has a life interest in the property. The second respondent had cancelled Exhibit P1 settlement deed by way of Ext.P2 cancellation deed. The first respondent has filed the suit

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O.P (C) NO. 100 OF 2021 3

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challenging the cancellation. The suit was decreed as per Ext. P3 judgment. The first respondent has filed the final decree application as I.A. No.1017/2014. The Advocate Commissioner has filed Ext.P4 report in the final decree application. However, the Advocate Commissioner has not assessed the facilities and the amenities in the building. Therefore, the petitioner has filed Ext.P5 application to set aside Ext.P4 report and to appoint a new Advocate Commission. The application has been opposed by the first respondent, who has filed Ext.P6 counter affidavit. The Advocate Commissioner has shown bias against the petitioner. Hence, he has again filed Ext.P13 application to appoint a new Advocate Commissioner. The same has also been opposed by the first respondent by filing Ext.P14 application. The court below, without adverting to Ext.P13, has dismissed the application by Ext.P16 order. Ext.P16 is vitiated and erroneous. Hence, the original petition.

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Heard; Sri. S.Biju, the learned counsel appearing for the petitioner and Sri.Baby Thomas, the learned counsel appearing for the first respondent. Service is complete on the second respondent.

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O.P (C) NO. 100 OF 2021 4

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The learned counsel appearing for the petitioner submitted that subsequent to Ext.P16 order, the Advocate Commissioner has conducted an inspection and has filed Ext.P17 report. The petitioner has again filed Ext.P18 application to set aside Ext.P17 report and to appoint a new Advocate Commissioner. The petitioner has also filed Ext.P19 objection to Ext.P17 report. Therefore, now, the limited prayer of the petitioner is to direct the court below to consider Exts.P18 and P19 before a final decision is taken on the final decree application. The above submission is not seriously opposed by the learned counsel appearing for the first respondent.

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In the light of the limited prayer that has been urged before this Court, I dispose of this original petition by directing the court below to consider Ext.P18 application, after adverting to Ext.P19 objection filed by the petitioner to Ext.P17 commission report, and pass orders on Ext.P18 application, in accordance with law, before taking a decision on I.A. No.1017/2014. Since the final decree application is of the year, 2014, every endeavour shall be made by the court below to consider and dispose of the

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O.P (C) NO. 100 OF 2021 5

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application in accordance with law and as expeditiously as possible, especially, in view of the fact that the second respondent is now aged 88 years.

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With the above observations, the original petition is disposed of.

Sd/-

C.S.DIAS, JUDGE

rmm21/06/2022

O.P (C) NO. 100 OF 2021 6

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APPENDIX OF OP(C) 100/2021

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PETITIONER EXHIBITS

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EXHIBIT P1A TRUE COPY OF THE SETTLEMENT DEED NO
456 O 1998 OF S.R.O ERATTUPETTA DATED
6.3.1998
EXHIBIT P2A TRUE COPY OF THE CANCELLATION DEED
NUMBER 1168 OF 2007 OF S.R.O
ERATTUPETTA
EXHIBIT P3A TRUE COPY OF JUDGMENT IN OS NO 40 OF
2008 DATED 30.10.2009 OF THE HONOURABLE
SUB COURT, PALA
EXHIBIT P4A TRUE COPY OF THE COMMISSION REPORT
DATED 15.3.2017 FILED IN IA NO 1017 OF
2014 IN OS NO 40 OF 2008 BEFORE THE
HONOURABLE SUB COURT, PALA
EXHIBIT P5A TRUE COPY OF THE APPLICATION FILED AS
IA NO 933 OF 2018 IN IA NO 1017 OF 2014
IN OS NO 4O OF 2008 BEFORE THE
HONOURABLE SUB COURT, PALA
EXHIBIT P6A TRUE COPY OF THE OBJECTION FILED BY
THE 1ST RESPONDENT IN IA NO 1017/2014
IN OS NO 40 OF 2008 BEFORE THE
HONOURABLE SUB COURT, PALA
EXHIBIT P7A TRUE COPY OF THE RADIOLOGY REPORT
DATED 1.9.2020 ISSUED FORM THE
ERNAKULAM MEDICAL CENTRE
EXHIBIT P8A TRUE COPY OF THE PROGRESS NOTES DATED
13.10.2020 ISSUED FROM THE AMRITA
INSTITUTE OF MEDICAL SCIENCE AND
RESEARCH CENTRE

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`O.P (C)`	`NO. 100 OF 2021 7`
`EXHIBIT`	`P9` `A TRUE COPY OF THE PROGRESS NOTES DATED` `14.11.2020 ISSUED FROM THE AMRITA` `INSTITUTE OF MEDICAL SCIENCE AND` `RESEARCH CENTRE`
`EXHIBIT`	`P10` `A TRUE COPY OF THE DISCHARGE SUMMARY` `DATED 21.11.2020 ISSUED FROM THE AMRITA` `INSTITUTE OF MEDICAL SCIENCE AND` `RESEARCH CENTRE`
`EXHIBIT`	`P11` `A TRUE COPY OF THE SURGICAL PATHOLOGY` `REPORT DATED 23.12.2020 ISSUED FROM THE` `AMRITA INSTITUTE OF MEDICAL SCIENCE AND` `RESEARCH CENTRE`
`EXHIBIT`	`P12` `A TRUE COPY OF THE ANTIGEN TEST REPORT` `OF THE PETITIONER DATED 18.11.2020` `ISSUED FROM THE AMRITA INSTITUTE OF` `MEDICAL SCIENCE AND RESEARCH CENTRE`
`EXHIBIT`	`P13` `A TRUE COPY OF THE PETITION FILED BY` `THE PETITIONER AS IA NO 1 OF 2020 IN OS` `NO 40 OF 2008 ON THE FILES OF THE` `HONOURABLE SUB COURT, PALA`
`EXHIBIT`	`P14` `A TRUE COPY OF THE OBJECTION FILED BY` `THE 1ST RESPONDENT IN THE ABOVE CASE`
`EXHIBIT`	`P15` `A TRUE COPY OF THE PHOTOGRAPHS OF THE` `BUILDING SITUATED IN THE PROPERTY`
`EXHIBIT`	`P16` `A TRUE COPY OF THE ORDER DATED` `22.12.2020 IN IA NO.1/ 2020 IN OS NO 40` `OF 2008 ON THE FILE OF THE HONOURABLE` `SUB COURT, PALA`
`Exhibit`	`P17` `A TRUE PHOTOCOPY OF THE COMMISSION` `REPORT FILED BY THE ADVOCATE` `COMMISSIONER IN O.S.NO.40 OF 2008 (FDA)` `ON THE SUB COURT, PALA DATED` `28/10/2021.`
`Exhibit`	`P18` `A TRUE PHOTOCOPY OF THE APPLICATION` `FILED BY THE PETITIONER AS I.A.NO.7 OF` `2021 DATED 09/09/2021 IN O.A.NO.40 OF` `2008 (FDA) ON THE FILE OF THE SUB`

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O.P (C) NO. 100 OF 2021 8

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COURT, PALA.
Exhibit P19A TRUE PHOTOCOPY OF THE OBJECTION TO
THE COMMISSIONER REPORT DATED
28/11/2021 FILED IN OS.NO.40 OF 2008
(FDA) ON THE FILE OF THE SUB COURT,
PALA FILED BY THE PETITIONER.

P.J.Mathew v. P.J.Kuriachan

Case brief

What is this about?

What did the court decide?

P.J.Mathew v. P.J.Kuriachan

Case brief

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