Allowed

Ambrose.a.B, v. K.P.Joshy

Kerala HC4 Jul 2022OP(C)/241/2019

Case brief

AI extract

What is this about?

This original petition challenged an order dismissing an application to admit proceedings from a Revenue Divisional Officer. The High Court found the dismissal hyper-technical and irregular, allowing the application and directing the lower court to accept the document via cross-examination.

What did the court decide?

Allowed the application; directed acceptance of exhibits marked in evidence through petitioner with provision for cross-examination; directed disposal of main suit by specific date.

Ambrose.a.B, Vs K.P.Joshy — 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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MONDAY, THE 4TH DAY OF JULY 2022 / 13TH ASHADHA, 1944
OP(C) NO. 241 OF 2019

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IN IA. NO.2837/2018 IN OS 222/2016 OF PRINCIPAL MUNSIFF COURT ,

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KOCHI

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PETITIONER:

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AMBROSE.A.B,
AGED 42 YEARS

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S/O A.K.BABU,ARAKKAL HOUSE,NAYARAMBALAM.

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BY ADVS.
J.ABHILASH
SRI.SHIJU VARGHESE

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RESPONDENTS:

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1 K.P.JOSHY, AGED 54 YEARS

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S/O PAILY, KURUSINKAL HOUSE, NAYARAMBALAM-682 509

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2 M.M.JOSEPH, AGED 63 YEARS S/O MICHAEL,, MANAKKAL HOUSE, NAYARAMBALAM-682 509

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3 A.J.JAMES, AGED 45 YEARS S/O YESUDASAN, ARAKKAL HOUSE, NAYARAMBALAM-682 509

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4 V.V.JOSEPH, AGED 66 YEARS S/O VARKEY,VALIYAPADATH HOUSE, NAYARAMBALAM-682 509

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5 K.D.JOSEPH, AGED 65 YEARS S/O DEVASSY,KACHAPILLY HOUSE, NAYARAMBALAM-682 509

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6 GEORGE A.B, AGED 44 YEARS S/O A.K.BAVU,ARAKKAL HOUSE, NAYARAMBALAM-682 509

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7 LILLY VARGHESE, AGED 50 YEARS

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OP(C) NO. 241 OF 2019 2

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D/O BAVU, NIKARTHIL HOUSE, NJARAKKAL-682 505

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8 JESSY JACOB, AGED 48 YEARS D/O BABU,PARADATHU HOUSE,PANAMBUKADU, VALLARPADAM, KOCHI 682 031

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9 ROSELY AUGUSTINE, AGED 46 YEARS D/O BAVU, PUNNATHARA HOUSE,OCHANTHURUTHU P.O.VALAPPU-682 508

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10 ALICE PAUL, AGED 35 YEARS D/O BAVU,KUZHINJALI HOUSE,KANNUR,PIN 670 571.

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BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.M.M.VINOD KUMAR
SRI.K.S.MIZVER
SMT.S.JESSIN
SMT.C.C.BINDHYA
SRI.P.K.RAKESH KUMAR

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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OP(C) NO. 241 OF 2019 3

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Dated this the 4^th day of July, 2022

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JUDGMENT

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The original petition is filed to set aside the order dated 10.12.2018 in I.A. No.2837/2018 in OS No.214/2012 (Ext.P7) of the Court of the Munsiff, Kochi.

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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 which is filed by the respondents 1 to 5, seeking a decree for fixation of western boundary of plaint A schedule property and for prohibitory injunction. The respondents 6 to 10 in the original petition are the defendants 1,3 to 6 in the suit. The petitioner and the 6^th respondent have contested the suit by filing Ext.P2 written statement. The main area of the dispute is relating to the width of the plaint B schedule property. The first respondent was examined as PW1 and the Taluk Surveyor was examined as PW6. It has come out during the course of trial that there is some inconsistency in the measurement of the property. Then, the petitioner has filed Ext.P3 application to call for the proceedings in OA No.1305/1917 of the Land Tribunal, Vypin. The said

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OP(C) NO. 241 OF 2019 4

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application was dismissed by Ext.P4 order. Then, the petitioner has filed Ext.P6 application to accept Ext.P5 proceeding of the Revenue Divisional Officer, Fort Kochi. However, the court below by impugned Ext.P7 order, has dismissed Ext.P6 application. Ext.P7 order is wrong. Hence, the original petition.

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Heard; Sri. J. Abhilash, the learned counsel appearing for the petitioner and Sri. K.S. Madhusoodanan, the learned counsel appearing for the respondents 1,2,4 and 5. Service is complete on the others.

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The sole point that arises for consideration in this original petition is whether there is any illegality or error in Ext.P7 order passed by the court below.

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The petitioner has filed Ext.P6 application to receive and mark Ext.P5 proceeding in the suit. The main grievance of the respondents 1 to 5/ the plaintiffs in the suit is that Ext.P5 can be accepted on record only if the same is marked either through the RDO, who has issued the proceeding or through the petitioner who desires to produce the document, so that the respondents 1 to 5 can cross examine the witness and discredit the document, otherwise, the respondents 1 to 5

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OP(C) NO. 241 OF 2019 5 would be put to severe prejudice.

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The court below, by the impugned order, has dismissed Ext.P6 application, mainly on the ground that the document was filed after the closure of plaintiffs’ evidence, that the petitioner has not given any reason for not producing the document at an earlier stage, and also that there is no reason as to the relevancy of the said document. I find the course adopted by the court below to be hyper technical and irregular.

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On a consideration of the pleadings and materials on record, I am of the view that the petitioner's right to rely on Ext.P5 proceeding passed by the Revenue Divisional Officer, Fort Kochi, cannot be foreclosed for the reason that the same was produced belatedly and the petitioner has not stated any reason in the application. Therefore, I am of the definite view that Ext.P5 can be accepted on record, provided the same is marked in evidence through the petitioner and by permitting the respondents 1 to 5 to cross examine the petitioner touching the relevancy of the document, which in turn would render substantial justice to both sides.

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In the result, in exercise of the supervisory powers of

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OP(C) NO. 241 OF 2019 6

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this Court under Article 227 of the Constitution of India, I

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dispose of the original petition in the following manner:-

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(i) Ext.P6 application is allowed.

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(ii) Ext.P5 proceeding shall be accepted and marked in evidence through the petitioner, who shall be subjected to cross examination by the respondents 1 to 5 touching the relevancy of the document.

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(iii) In case of any necessity regarding the contents of Ext.P5, the petitioner would be at liberty to summon and prove Ext.P5 proceeding in accordance with law.

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(iv) On a consideration of the fact that the suit of the year 2012, I direct the court of the Principal Munsiff, Kochi, to consider and dispose of the suit, in accordance with law, as expeditiously as possible, at any rate, on or before 23.12.2022.

Sd/-

C.S.DIAS, JUDGE

rmm 05/07//2022

OP(C) NO. 241 OF 2019 7

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A PPENDIX OF OP(C) 241/2019

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PETITIONER EXHIBITS

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EXHIBIT P1TRUE COPY OF THE PLAINT IN OS 214/2012
BEFORE THE HON'BLE MUNSIFF COURT KOCHI

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EXHIBIT P2TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE PETITIONER/2ND DEFENDANT.

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EXHIBIT P3TRUE COPY OF THE I.A NO 2792/2018 FILED
BY PETITIONER/2ND DEFENDANT.

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EXHIBIT P4TRUE COPY OF THE ORDER IN IA NO 2792/2018

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EXHIBIT P5TRUE COPY OF THE PROCEEDINGS IN D-
1549/2005 ON THE FILES OF RDO OF THE FORT
KOCHI

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EXHIBIT P6TRUE COPY OF THE IA NO 2837/2018 FILED BY
PETITIONER/2ND DEFENDANT

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EXHIBIT P7TRUE COPY OF THE ORDER IN IA NO 2837/2018
IN OS 214/2012 BEFORE THE HON'BLE MUNSIFF
COURT KOCHI

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RESPONDENT’S EXHIBITS

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EXHIBIT R5(a)

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PHOTOCOPY OF IA NO.1/2020 IN OS NO.214/2012 PENDING BEFORE THE PRINCIPAL MUNSIFF COURT, KOCHI, DATED 03.11.2020

Ambrose.a.B, v. K.P.Joshy

Case brief

What is this about?

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Ambrose.a.B, v. K.P.Joshy

Case brief

What is this about?

What did the court decide?

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