Final decree proceedings: the Sub Court had remitted the Commissioner's report on a party's objection by a cryptic, unreasoned order. The High Court set aside that order, holding objections to a commission report must be decided by the court itself, and remitted the objection for decision with expeditious disposal directed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 12TH DAY OF JANUARY 2024 / 22ND POUSHA, 1945
OP(C) NO. 1934 OF 2023
IN O.S. NO.34/2011 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, ERNAKULAM
FDIA NO.1601/2012 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, ERNAKULAM
PETITIONER/RESPONDENT/RESPONDENT/DEFENDANT:
A.G.UNNIKRISHNAN, AGED 72 YEARS, S/O JAGADAMMA , ERAVATHUKATTIL HOUSE, JAGADAM NOVAS, VAZHAKKALA VILLAGE, THRIKKAKKARA, ERANAKULAM, PIN – 682021. BY ADVS. MAHESH V RAMAKRISHNAN PRAVEEN K.S.
RESPONDENT/PETITIONER/ADDL. 2ND PETITIONER/LRS OF PLAINTIFF:
AMBIKA, D/O SAROJINI AMMA AND W/O VIJAYAN NAIR, AGED 62 YEARS, RESIDING AT ARUNODAYAM HOUSE, NJALAKAM KARA, THRIKKAKKARA VILLAGE, KANAYANNUR TALUK, ERANAKULAM, PIN – 682021.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C).NO.1934 OF 202 3
..2..
J U D G M E N T
Dated this the 12th day of January, 2024
Under challenge in this Original Petition is Ext.P11 order at the instance of the petitioner, who is the respondent in FDIA No.1601/2012, pending before the Principal Sub Court, Ernakulam. As per Ext.P11, a Commission Report has been remitted back based on the objection preferred by the respondent herein, who is the petitioner in FDIA above referred.
2. Heard the learned counsel for the petitioner. Notice issued to the respondent was returned 'unclaimed' and therefore service is deemed on th e respondent.
3. Learned counsel for the petitioner submits that
O.P.(C).NO.1934 OF 202 3
..3..
Ext.P11 is a cryptic order, without assigning any
reason, whatsoever, for remitting the Commissioner's report and sketch. No infirmity, legal or factual, whatsoever has been found by the learned Sub Judge so as to remit the Commissioner's report. That apart, Ext.P11 contains a direction to the Commissioner to consider the objection to the Commission report, which is also not in terms of law. Learned counsel submits that the matter was, in fact, compromised by the parties resulting in Ext.P3 settlement and all what was required was to demarcate the 28 cents, which the petitioner is entitled to. The same has been clearly done in Ext.P7 Commission report and plan. An additional point which is required to be noticed in the work memo, as regards the existence of the pathway, has also been clearly indicated in Ext.P7. As per Ext.P7, it could be seen that the extent of the property in the hands of the petitioner is only 27.823 cents, as against his entitlement for 28 cents. According to the learned counsel there
O.P.(C).NO.1934 OF 202 3
..4..
exists no reason, whatsoever, to remit the
Commissioner's report.
4. Having heard the learned counsel for the
petitioner, this Court finds considerable merits in the submissions. As rightly pointed out, Ext.P11 order is a cryptic one, without assigning any reason, whatsoever, to remit the Commissioner's report and sketch. This Court also finds that the direction to the Commissioner to consider the objection to the commission report also renders the impugned order illegal and unsustainable. The objection to the Commissioner's report is to be considered by the court and only upon satisfaction that there exists a legal or factual infirmity with respect to the report and sketch, the court can remit the same. The same cannot be done on the mere asking by one among the parties. The factual aspects pointed out by the learned counsel for the petitioner, as regards the extent of land to which the petitioner is entitled to and as regards the
O.P.(C).NO.1934 OF 202 3
..5..
extent which was found in Ext.P7 sketch, also looms large.
5. In the circumstances, Ext.P11 order is set aside and the matter is remitted back to the learned Sub Judge to decide the objection to Ext.P7 report and plan. Learned Munsiff will take stock of the fact that the suit is of the year 2011 and the final decree application is of the year 2012, wherefore an expeditious disposal of the matter, so as to bring in a quietus amongst the parties, is imperative. In such circumstances, unless there is a specific and clear infirmity noticed in Ext.P7 report and plan, the same shall not be remitted.
The Original Petition is disposed of, as above.
Sd/-
C. JAYACHANDRAN JUDGE
Skk//15.01.2024
O.P.(C).NO.1934 OF 202 3
..6..
APPENDIX OF OP(C) NO.1934/2023
PETITIONER'S EXHIBITS:-
| EXHIBIT P1 | TRUE COPY OF THE PLAINT DATED 03-01-2011 IN OS NO.34 OF 2011 OF SUB COURT, ERANAKULAM. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED NIL ALONG WITH A REPORT DATED 16- 11-2011 SUBMITTED BY MEDIATOR ADVOCATE K.K.VIJAYAKUMAR IN OS NO.34 OF 2011 |
| EXHIBIT P3 | TRUE COPY OF THE MEDIATION SETTLEMENT AGREEMENT DATED NIL IN FDIA NO.1601/2012 IN OS 34/2011 OF SUB COURT, ERANAKULAM |
| EXHIBIT P4 | TRUE COPY OF THE REPORT AND PLAN DATED 19-06-2013 FILED BY THE ADVOCATE COMMISSIONER IN FDIA 1601/2012 |
| EXHIBIT P5 | TRUE COPY OF THE REPORT AND PLAN DATED 30-07-2018 IN FDIA 1601/2012 FILED BY THE ADVOCATE COMMISSIONER. |
| EXHIBIT P6 | TRUE COPY OF THE ORDER DATED 04-09-2019 IN I.A. NO.1161/2021 IN FDIA NO. 1601/2012 . |
| EXHIBIT P7 | TRUE COPY OF THE DETAILED PLAN AND REPORT DATED 23-06-2020 IN FDIA NO. |
| 1601/2012 OF THE ADVOCATE COMMISSIONER. | |
| EXHIBIT P8 | TRUE COPY OF THE WORK-MEMO DATED 09-12- 2019 SUBMITTED BY THE RESPONDENT HEREIN TO THE ADVOCATE COMMISSIONER. |
| EXHIBIT P9 | TRUE COPY OF THE PETITION IN I.A. NO.1/2021 IN FDIA NO.1601/2012 FILED BY THE RESPONDENT HEREIN. |
| EXHIBIT P10 | TRUE COPY OF THE DETAILED OBJECTION DATED 23-10-2021 TO I.A. NO.1/2021 IN FDIA NO.1601/2012 FILED BY THE PETITIONER. |
| EXHIBIT P11 | TRUE COPY OF THE ORDER DATED 06-02-2023 IN I.A. NO.1/2021 IN FDIA NO.1601/2012 |
1 issue framed by the court
Whether the trial court could remit the Commissioner's report and sketch without assigning reasons or finding any legal or factual infirmity therein.
A.G. Unnikrishnan
Ambika
C. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
