Disposed

Jayesh v. K.N. Prakashan

Kerala HC7 Sept 2023OP(C)/407/2023

Case brief

AI extract

What is this about?

The High Court declined to interfere with the lower court's rejection of an application to set aside an Advocate Commissioner's report. The Court held that such challenges are matters for the trial stage after the Commissioner's examination, leaving the petitioners free to challenge the report later.

What did the court decide?

The original petition was closed without any specific relief granted, dismissing the interim challenge to the rejection.

Jayesh Vs K.N. Prakashan — Contract and Commercial Disputes | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

THURSDAY, THE 7^TH DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945

¶5

OP(C) NO. 407 OF 2023

¶6

AGAINST THE ORDER IN IA 1/2023 IN OS 141/2015 OF MUNSIFF COURT,

¶7

VAIKOM

¶8

PETITIONERS/DEFENDANTS 1 AND 2:

¶9

1 JAYESH, AGED 50 YEARS, S/O. VISWANATHAN NAIR, SREEMANDIRATHIL HOUSE, UDAYANAPURAM P.O, IRUMBUZHIKKARA, VAIKKOM, PIN - 686143

¶10

2 VISWANATHAN NAIR, AGED 81 YEARS, S/O. NARAYANAN NAIR, SREEMANDIRATHIL HOUSE, UDAYANAPURAM P.O, IRUMBUZHIKKARA , VAIKKOM, PIN - 686143

¶11

K.S.MADHUSOODANAN M.M.VINOD KUMAR P.K.RAKESH KUMAR K.S.MIZVER M.J.KIRANKUMAR

¶12

RESPONDENTS/PLAINTIFFS:

¶13

1 K.N. PRAKASHAN, AGED 64 YEARS, S/O. NARAYANAN NAIR, SREEMANDIRATHIL HOUSE, VADAKKEMURI VILLAGE, UDAYANAPURAM P.O, IRUMBUZHIKKARA, VAIKKOM - 686143

¶14

2 JAYASREE, AGED 54 YEARS, W/O. PRAKASAN, SREEMANDIRATHIL HOUSE, VADAKKEMURI VILLAGE, UDAYANAPURAM P.O, IRUMBUZHIKKARA , VAIKKOM, PIN - 686143

¶15

Liji J Vadakkedom REXY ELIZABETH THOMAS(K/635/1995) TOM E. JACOB(K/1144/2001) ATHUL V. VADAKKEDOM(K/003544/2022)

¶16

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

¶18

OP(C) NO. 407 OF 2023

¶19

JUDGMENT

¶20

The petitioners, who are the defendants in

¶21

O.S.No.141/2015 on the files of the Munsiff's Court, Vaikkom, impugn Ext.P6 order of the said Court, whereby, an application filed by them to set aside the report of the Advocate Commissioner and to have the same remitted to the said Authority has been rejected.

¶22

Sri.K.S.Madhusoodanan – learned counsel for the petitioners, vehemently argued that the report of the Advocate Commissioner impugned by his clients is without any basis and has been settled without even adverting to the title documents. He submitted that, therefore, no purpose would be served by such a report; and that it is hence that his clients filed the application to have it set aside, which, however, has been rejected through Ext.P6 order. He thus prayed that Ext.P6 be set aside.

¶23

Sri.Liji J.Vadakkedom – learned counsel for the respondents, in refutation, submitted that, as is evident from Ext.P6, the learned Munsiff has not entered into the merits of any of the rival contentions, but has only found that the stage has not arrived for the petitioner herein to challenge the learned Commissioner's report. He argued that such an action

¶24

OP(C) NO. 407 OF 2023

¶25

¶26

could have been taken forward only after the learned Commissioner had been examined, particularly when the petitioners' specific case is that the report has been settled without adverting to the basic title documents. He submitted that these are matters of evidence, which cannot be decided by the learned Munsiff at the first stage and therefore, that Ext.P6 is irreproachable.

¶27

Sri.Liji Vadakkedom, thereupon, substantiated his afore contentions, relying upon the judgment of this Court in Kanaran Nair v. Madhavan Nair [1996 KHC 34], arguing that it is always open to the petitioners to contend before the Trial Court that the report of the Commissioner cannot be relied upon. He predicated that, going by the ratio in this judgment, the petitioners could not have moved an application for having the report of the learned Commissioner set aside even before his examination and therefore that the contentions now preferred by him cannot hold water.

¶28

When I evaluate and consider the afore rival submissions, I must say that there is force in the contentions of Sri.Liji Vadakkedom because, the order impugned can only be treated to be interlocutory in nature and would not in any manner influence the Trial Court from taking a different view

¶29

OP(C) NO. 407 OF 2023

¶30

¶31

at the stage of trial. If the petitioners have a case that the report of the learned Commissioner is not based on relevant aspects or is settled without adverting to the title documents, this is a defence available to them at the time of the Trial, to have the same called into question. One fails to understand why he should have moved the Court to have the report of the learned Commissioner set aside and the matter remitted back to the same Commissioner.

¶32

In the afore circumstances, I close this original petition; however, clarifying that nothing contained in the impugned order of the learned Munsiff, or in this judgment, would trammel or fetter any right of the petitioners to challenge the report of the Commissioner in due course, in such manner as is permissible under law.

¶33

Sd/- DEVAN RAMACHANDRAN JUDGE

¶34

stu

¶35

OP(C) NO. 407 OF 2023

¶36

¶37

APPENDIX OF OP(C) 407/2023

¶38

PETITIONER EXHIBITS

¶39

EXHIBIT	P-1 PHOTOCOPY OF THE PLAINT IN O.S. 141/2015 OF MUNSIFF COURT, VAIKOM DATED 20-5-2015.
EXHIBIT	P-2 PHOTOCOPY OF THE WRITTEN STATEMENT DATED 15-9-2015.
EXHIBIT	P-3 THE PHOTOCOPY OF THE COMMISSION REPORT AND PLAN DATED 09-04-2018
EXHIBIT	P-4 THE PHOTOCOPY OF THE OBJECTION TO THE COMMISSION REPORT DATED 06-02-2019
EXHIBIT	P-5 THE PHOTOCOPY OF I.A. NO. 1/2023 DATED 25- 01-2023
EXHIBIT	P-6 A PHOTOCOPY OF THE ORDER OF THE MUNSIIF COURT VAIKOM IN I.A.NO. 1/2023 DATED 08- 02-2023

Jayesh v. K.N. Prakashan

Case brief

What is this about?

What did the court decide?

Jayesh v. K.N. Prakashan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Dr.Meera, W/o.Harimohan Vs Dr.Harimohan K.G. S/O.K.P.Gopinathan

Rincy Ann Lalu Vs Benoy Kuruvilla

Sajana P M K. Vs Daimler Financier Services India Private Limited

Konuparamban Traders Vs the Kerala State Civil Supplies Corporation Ltd.

M/S. Panos Apparel Industries Vs State Bank of India

Preetha Joseph Vs K.S.Koshy