Dismissed

Lathika Kumari v. Vinod

Kerala HC17 Nov 2023OP(C)/1887/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition preferring a belated application for issuance of a Survey Commission to fix boundary properties. The petition was filed after evidence was adduced, and the court held the delay was unjustified and prejudicial. The suit was originally for fixation of boundary.

What did the court decide?

Application for Survey Commission and the Original Petition were dismissed.

Lathika Kumari Vs Vinod — Property and Title | 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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FRIDAY, THE 17^TH DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945

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OP(C) NO. 1887 OF 2023

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AGAINST THE ORDER/JUDGMENT OS 74/2017 OF PRINCIPAL MUNSIFF COURT , KOLLAM

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PETITIONER/PETITIONER/PLAINTIFF:

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LATHIKA KUMARI AGED 70 YEARS W/O SUKAMARA PILLAI , LATHIKA MANDIRAM. CHANDANATHOPPU P.O, MANGAD ,KOLLAM, PIN - 691014

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BY ADV ARUN BABU

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RESPONDENT/RESPONDENT/DEFENDANTS:

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1 VINOD AGED 46 YEARS S/O SREEDHARAN PILLAI KAMANCHAZHIKATHU VEEDU , CHATHINAMKULAM, CHADANATHOPPE P.O, MANGAD KOLLAM, PIN - 691014 2 RAJI AGED 41 YEARS KAMANCHAZHIKATHU VEEDU, CHATHINAMKULAM, CHADANATHOPPE P.O, MANGAD KOLLAM, PIN - 691014 BY ADVS. SAJU J PANICKER KURIAN K JOSE(K/001510/2019)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).No. 1887 of 2023

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..2..

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J U D G M E N T

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Dated this the 17^th day of November, 2023

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This Original Petition (Civil) is preferred by the plaintiff in O.S.No.74/2017 pending before the Principal Munsiff Court, Kollam. The suit was one for fixation of boundary. Along with the suit, the plaintiff moved an application for issuance of Commission for local inspection. The Commissioner, after inspection, reported the existence of plaint B schedule pathway. A counter claim was preferred

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by the defendants in the suit, admitting the existence of the pathway, but disputing its width. According to the plaintiff, the pathway was having a width of 1.5 meters, whereas, the same is only 80 cm, according to the defendants. To the counter claim, the plaintiffs filed replication. Thereafter, the defendants filed an application

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for issuance of a Survey Commission, with the assistance of a surveyor, which was allowed by the learned Munsiff. The report was filed and the

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O.P.(C).No. 1887 of 2023

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..3..

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matter was posted for evidence. The plaintiff and the defendants were examined. Thereafter, the Commissioner was examined. According to the learned counsel for the petitioner/plaintiff, the Commissioner, during the course of crossexamination, deposed that he had measured only the counter claim schedule property; this prompted the plaintiff to prefer a fresh application for issuance of a Survey Commission with the assistance of a Surveyor, with a prayer to fix the boundary by and between the plaint A and C schedule property (property of the defendants). This was dismissed by the learned Munsiff vide Ext.P7 order, which is under challenge in this Original Petition.

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2. Heard the learned counsel for the petitioner and respondents.

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3. Having heard the learned counsel appearing on both sides, this Court is not inclined to allow

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O.P.(C).No. 1887 of 2023

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..4..

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the instant Original Petition. This Court notice that the application has been filed after the plaintiff's evidence and the defendants evidence were adduced. Even going by the plaintiffs contention, it is only when the Commissioner deposed that he measured only the counter claim schedule properties, that the plaintiff chose to file the instant application for measurement of the plaint A & C schedule properties, so as to fix the boundary. Needless to say that, the suit as originally filed was for fixation of boundary. The plaintiff remained rest contented with an application for issuance of a Commission for local inspection. He did not choose to file any application for measuring out the properties and to fix the boundary, which is the bounden duty of the plaintiff in a suit for fixation of boundary. The said duty is not seen discharged; instead, the defendants filed an application to measure out their property, so as to fix the boundary and a Commission report has been filed. Neither before

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O.P.(C).No. 1887 of 2023

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..5..

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the commencement of the trial, nor immediately after the commencement of the trial, the plaintiff did not find the necessity to seek issuance of a Survey Commission. It is only at the fag end of the trial, that is to say, after examination of the plaintiff and the defendants and during the course of examination of the Commissioner, that the plaintiff felt the necessity to file an application for issuance of a Survey Commission and to fix the boundary. The version of the learned counsel for the petitioner is that, the same is a mistake committed by the counsel appearing for the plaintiff, for which the plaintiff should not be put to any prejudice. This Court cannot endorse the said contention of the learned counsel. The proviso to Order VI Rule 17 was introduced by virtue of the amendment to the Code of Civil Procedure in the year 2002. As rightly found by the learned Munsiff, the petition is highly belated and there is no explanation forth coming as to why such an application was not

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O.P.(C).No. 1887 of 2023

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..6..

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preferred on time. If applications in this nature are to be entertained, according to the whims and fancies of the parties in the suit, the same will not only prolong the trial and will consume the precious time of the Court, but would also put the defendants on serious prejudice, by an action kept hanging over them for an unduly long period, for no fault of their.

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In these circumstances, this Original Petition will stand dismissed.

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Sd/-

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C. JAYACHANDRAN JUDGE

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O.P.(C).No. 1887 of 2023

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..7..

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APPENDIX OF OP(C) 1887/2023

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PETITIONER EXHI	BITS
Exhibit P1	THE TRUE COPY OF THE PLAINT IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM
Exhibit P 2	THE TRUE COPY OF THE COMMISSION REPORT DATED 13/02/2017 , ALONG WITH PLAN AND MAHASSAR PREPARED BY ADV REEJA IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM
Exhibit P3	THE TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH COUNTER CLAIM DATED 4/07/2017 IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM
Exhibit P4	THE TRUE COPY OF THE COMMISSION REPORT DATED 06 /07/2018 , ALONG WITH PLAN AND MAHASSAR PREPARED BY ADV PRINCEKUMAR IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM
ExhibitP 5	. THE TRUE COPY OF IA 4 /20203 DATED 24/06/2023 IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM
ExhibitP 6	THE TRUE COPY OF THE OBJECTION DATED 27/06/2023 FILED BY THE DEFENDANT TO IA 4/20203 IN IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM
Exhibit P7	THE CERTIFIED COPY OF THE ORDER DATED 26/07/20203 IN IA 4/20203 IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM
ExhibitP 8	THE TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFF TO THE EXHIBIT P4 COMMISSION REPORT IN IN OS 74/2017 OF THE PRINCIPAL MUNSIFF COURT KOLLAM

Lathika Kumari v. Vinod

Case brief

What is this about?

What did the court decide?

Lathika Kumari v. Vinod

Case brief

What is this about?

What did the court decide?

What the court decided

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