Allowed

Abdul Nazar Sait v. Adv. Devashikhmony

Kerala HC8 Nov 2023OP(C)/1296/2023

Case brief

AI extract

What is this about?

High Court allowed an original petition dismissing interlocutory applications in an underlying suit for injunction. Held that appointing a surveyor in an injunction suit where a prior commission report was unobjected constitutes abuse of process to delay proceedings.

What did the court decide?

Original petition allowed; I.A. No.14/2023 and I.A. No.15/2023 dismissed. Underlying suit to proceed from where stalled.

Abdul Nazar Sait Vs Adv. Devashikhmony — Landlord and Tenant | Kerala HC (2023)

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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. JAYACHANDRAN

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WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945

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OP(C) NO. 1296 OF 2023

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IN OS NO.1233/2017 OF II ADDITIONAL MUNSIFF’S COURT, ERNAKULAM

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PETITIONERS/ 1ST RESPONDENT IN I.AS / 1ST DEFENDANT:

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ABDUL NAZAR SAIT
AGED 58 YEARS, S/O ABDUL SATTAR SAIT, 40/4073,
MUNJAPPILLY BUNGLOW, JEWS STREET, COLLEGE P.O.,
ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM,
KOCHI, PIN – 682035.

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BY ADVS.
K.V.JAYACHANDRAN
RAJU V.MATHEW
HARISHANKAR K.J.

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RESPONDENTS/PETITIONER/RESPONDENT 2 TO 4 IN I.AS/PLAINTIFF & DEFENDANTS 2 TO 4:

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1 ADV. DEVASHIKHMONY AGED 79 YEARS, S/O VANNYANATHAN,1154 A, NEAR PALIAM LANE MATTANCHERY, KOCHI, PIN – 682002.

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2 THE ADDITIONAL THASILDAR KANAYANNUR TLUK, TALUK OFFICE, ERNAKULAM, PIN – 682011.

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3 THE TALUK SURVEYOR KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM, KOCHI, PIN – 682011.

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4 THE VILLAGE OFFICER ERNAKULAM VILLAGE, ERNAKULAM, PIN – 682011.

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BY ADV P.T.JOSE

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SRI.S. UNNIKRISHNAN, GOVT. PLEADER

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2023, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).NO.1296 of 2023

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..2..

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C. JAYACHANDRAN, J. =====================

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O.P.(C) No.1296 of 2023

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========================================
Dated this the 08thday of November, 2023

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J U D G M E N T

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The 1st defendant in O.S. No.1233/2017 of the

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Second Additional Munsiff’s Court, Ernakulam is
the petitioner herein. He is aggrieved by

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Exts.P10 and P11 orders of the learned Munsiff,
the first of which allowed a commission
application preferred by the plaintiff (IA
No.14/2023) and the second, reopening the evidence
of the plaintiff (IA No.15/2023).

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2. Heard the learned counsel for the petitioner

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and respondents.

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3. Learned counsel for the petitioner/1^st

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O.P.(C).NO.1296 of 2023

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..3..

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defendant submitted that, in this suit of the year
2017, an interim injunction was holding sway
against the petitioner for the past more than six
years. It is also pointed out that along with the
suit, the plaintiff (1st respondent herein) took
out a commission for local inspection and a report
has been filed. The case was proceeded with and
trial commenced. The plaintiff was examined.
Ext.C1(a) commission report was marked without
objection. Upon completion of examination, the
plaintiff came up with an application to remit the
Commissioner’s report and to appoint a new
commission, which was dismissed by the court
below. A review was filed against that order,
which also faced a dismissal by the court below.
Exts.P4 and P5 are the orders, afore referred.
Thereafter, the plaintiff (1st respondent herein)
preferred another application, I.A. No.14/2023,
again seeking appointment of a Commissioner with
the assistance of a Surveyor to measure the

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O.P.(C).NO.1296 of 2023

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..4..

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properties. It was pointed out that the suit was
one for injunction simpliciter restraining the
petitioner/1stdefendant in the suit from
trespassing into the plaint schedule property.
According to the learned counsel, the present
attempt is only to drag the proceedings. The
court below, unmindful of the above aspects,
allowedthecommissionapplicationfor
measurement, vide Ext.P10 order, wherefore the
same is to liable to be interfered with, is the
submission of the learned counsel.

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4. The learned counsel for the 1^st respondent

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(plaintiff in the suit), would submit that the
present suit is an off-shoot of a dispute, which

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was pending between the plaintiff and the
defendants from 1949 onwards, and that Ext.P10
order reflects the reasons for allowing IA
No.14/2023.

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O.P.(C).NO.1296 of 2023

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..5..

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5.According to the learned counsel, the
measurement of the property is quite required,
although the relief sought for is for injunction
simpliciter. There is a dispute with respect to
the identity of the property, which has to be
resolved for an effective adjudication of the
lis. Learned counsel would submit that there is
nothing illegal in the order impugned. As regards
Ext.P11, the learned counsel for the petitioner
would submit that it is only consequential to
Ext.P10 order.

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6. Having heard the learned counsel on both

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sides, this Court finds considerable merit in the
submissions made by the learned counsel for the
petitioner/1st defendant. Primarily, this Court
notice that the suit is only for injunction
simpliciter. The plaintiff had already taken out a
commission and the report is marked as Ext.C1(a),
without any objection. The trial has commenced

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O.P.(C).NO.1296 of 2023

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..6..

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and the plaintiff was examined as PW1. Upon
completion of his examination, the plaintiff
attempted an application to remit Ext.C1(a) report
and to appoint a fresh Commissioner, which was
disallowed by the court below, vide Ext.P4 order.
A review of that order was sought for, which also
resulted in dismissal, vide Ext.P5 order. It is
thereafter, that the plaintiff filed the instant
interlocutory application for appointment of a
Commissioner, assisted by a Surveyor to measure
the properties. This Court is of the opinion that
the exercise verges on abuse of the process of the
Court. It is not enough, that a party to the lis
propounds a dispute with respect to the identity
of the property, for issuance of a survey
commission in a suit for injunction simpliciter.
A real dispute should be there, as reflected from
the pleadings of the parties, the resolution of
which should be a sine qua non for an effective
adjudication of the suit, in which case only a

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O.P.(C).NO.1296 of 2023

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..7..

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measurement commission would be justified in a
suit for injunction simpliciter. In the instant
case, having declined the application for
remittance of Ext.C1(a) commission report and a
review of the dismissal order, the learned Munsiff
ought not have allowed the instant interlocutory
application for measurement of the properties by
appointing a Commissioner along with a Surveyor,
more so when the trial has begun and the plaintiff
was examined. In the circumstances, the
contention of the learned counsel for the
petitioner, that attempt of the 1st respondent/
plaintiff is to fill up the lacuna in the evidence
and to drag the proceeding, cannot be completely
eschewed.

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This original petition is therefore allowed. I.A.
No.14/2023 will stand dismissed. Consequently,
I.A. No.15/2023 will also stand dismissed. The
trial court will proceed with the trial, from the

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O.P.(C).NO.1296 of 2023

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..8..

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point where it was stalled. Being a suit of the
year 2017, the learned Munsiff may make every
endeavor to complete the trial and dispose of the
suit at the earliest, at any rate within a period
of six months from the date of receipt of a copy
of this judgment.

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 Sd/-
C. JAYACHANDRAN
JUDGE

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Skk//09.11.2023

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O.P.(C).NO.1296 of 2023

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..9..

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APPENDIX OF OP(C) NO.1296/2023

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PETITIONER’S EXHIBITS:-

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`EXHIBIT P1`	`TRUE COPY OF THE PLAINT DATED 8-11-2017` `OF IIND ADDL. MUNSIFF'S COURT ERNAKULAM` `OF O.S.NO.1233/2017L`
`EXHIBIT P2`	`TRUE COPY OF THE WRITTEN STATEMENT` `DATED 23-11-2017`
`EXHIBIT P3`	`TRUE COPY OF THE JUDGEMENT DATED 17-2-` `2020 IN CMA NO.42/2018 OF ADDL.` `DISTRICT COURT, ERNAKULAM`
`EXHIBIT P4`	`TRUE COPY OF THE ORDER DATED 10-11-2022` `PASSED BY THE 2ND ADDITIONAL MUNSIFF'S` `COURT ERNAKULAM IN I.A. NO.10/2022 IN` `I.A.NO.7633/2017 IN O.S.NO.1233/2017`
`EXHIBIT P5`	`TRUE COPY OF THE ORDER DATED 16/3/2023` `IN R.P.NO.6/2023 IN I.A.NO.10/2022 IN` `O.S.NO.1233/2017`
`EXHIBIT P6`	`TRUE COPY OF THE I.A.NO.14/2023 DATED` `6/6/2023 IN O.S.NO.1233/2017`
`EXHIBIT P7`	`TRUE COPY OF THE I.A.NO.15/2023 IN` `O.S.NO.1233/2017`
`EXHIBIT P8`	`TRUE COPY OF THE COUNTER AFFIDAVIT IN` `I.A.NO.14/2023`
`EXHIBIT P9`	`TRUE COPY OF THE COUNTER AFFIDAVIT IN` `I.A.NO.15/2023 DATED 7-6-2023`
`EXHIBIT P10`	`TRUE COPY OF THE ORDER DATED 13-06-2023` `ON I.A.NO.14/2023 IN O.S.NO.1233/2017` `PASSED BY THE IIND ADDL. MUNSIFF'S` `COURT ERNAKULAM`
`EXHIBIT1 P11`	`TRUE COPY OF THE ORDER DATED 13-06-2023` `IN I.A.NO. 15/2023 IN I.A.NO.10/2022 IN` `O.S.NO.1233/2017 PASSED Y THE IIND` `ADDL. MUNSIFF'S COURT ERNAKULAM`

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RESPONDENTS’ EXHIBITS:-

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`EXHIBIT R1(A)`	`TRUE COPY OF JUDGMENT DATED 27/03/1950`
	`IN OS NO.391/1124 ME`
`EXHIBIT R1(B)`	`TRUE COPY OF JUDGMENT DATED 28/10/1975`
	`IN OS 334/1970`

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O.P.(C).NO.1296 of 2023

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..10..

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EXHIBIT R1(C)TRUE COPY OF JUDGMENT DATED 12/7/1978
IN A.S.90/1976
EXHIBIT R1(D)TRUE COPY OF THE JUDGMENT DATED
8/2/1990 IN OS 366/1981
EXHIBIT R1(E)TRUE COPY OF JUDGMENT DATED 14/12/1992
IN A.S.38/1991
EXHIBIT R1(G)TRUE COPY JUDGMENT DATED 21/1/1998 IN
O.S.1036 OF 1987
EXHIBIT R1(H)TRUE COPY OF JUDGMENT DATED 31/8/2005
IN A.S.NO.129 OF 1998
EXHIBIT R1(F)TRUE COPY OF ORDER DATED 28/2/1984 IN
RCP 128/1981

Abdul Nazar Sait v. Adv. Devashikhmony

Case brief

What is this about?

What did the court decide?

Abdul Nazar Sait v. Adv. Devashikhmony

Case brief

What is this about?

What did the court decide?

What the court decided

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