Saraswathy T.K vs Savithri Chandhra Bose

C.S Dias, J

Aggrieved by Ext.P7 order passed in I.A. No.5/2022 in O.S.No.849/2018 by the Court of the III Additional Munsiff, Ernakulam, the defendant has filed the original petition. The respondents are the plaintiffs.

The relevant antecedent facts leading to Ext.P7 order are: the respondents filed the suit against the petitioner for a decree of permanent prohibitory injunction. Later, they amended the plaint and incorporated a prayer for a decree of mandatory injunction as well. The suit is resisted by the petitioner through Ext.P2 written statement. An Advocate Commissioner and a Surveyor were appointed to elucidate matters sought for in I.A.No.2320/2019. The Advocate Commissioner and the Surveyor have filed Ext.P3 report and plan. The petitioner filed Ext.P4 objection to Ext.P3 report and plan detailing the irregularities and discrepancies and also filed I.A. No.5/2022 (Ext.P5) to set aside Ext.P3 report and plan. The court below, by the impugned Ext.P7 order, rejected Ext.P5 application mainly on the finding that this court in O.P(C) No.1061/2022 has directed the expeditious disposal of the suit. Ext.P7 is vitiated by irregularities and illegalities. Hence, the original petition.

Heard; Sri. A.Balagopalan, the learned counsel appearing for the petitioner and Sri. M.P.Madhavankutty, the learned counsel appearing for the respondents

The question is whether there is any illegality in Ext.P7 order.

The  suit  is  filed for  a  decree  of  permanent prohibitory injunction and a decree of mandatory injunction. The respondents’ case is that the petitioner has illegally constructed a building by encroaching into their property.

In order to substantiate the respondents’ case, they filed I.A.No.2320/2019. The Advocate Commissioner, with the assistance of a Taluk Surveyor, has filed Ext.P3 report and plan. The petitioner objected to the report and plan through Ext.P4 objection and filed Ext.P5 to set aside the report and plan. The petitioner has contended that there are several irregularities and discrepancies in the report and plan. The court below, by the impugned Ext.P7 order, dismissed the application as follows:-

“After hearing both sides this court is of the opinion that there is no need to set aside the commission report at present. The counsel for petitioner can examine the advocate commissioner at the time of evidence. They have filed their objection to commission report as well. Hence at this juncture if the petition is allowed and new commissioner is appointed, it will cause delay in rendering the justice. Apart from that there is a time limit fixed by Hon'ble High Court of Kerala to dispose the suit before 28.02.2023. Therefore, this court is not intending to cause further delay in disposing the suit. The petitioner can examine the advocate commissioner and surveyor after the matter gets listed for trial.

Hence, in the light of discussion held, IA is dismissed with costs.”

A reading of Ext.P7 order would establish that the court below has not adverted to any of the objections raised by the petitioner in Ext.P4 objection and P5 application. The court below has principally dismissed the application in view of the time frame fixed by this Court in O.P.(C)No.1061/2022. I find the course adopted by the court below to be erroneous and unsustainable in law, that too by dismissing the application with costs.

In fact, I fail to understand the anxiety of the petitioner in filing Ext.P5 application because the entire onus of proof to substantiate that the petitioner has encroached into the properties of the respondents rests on the shoulders of the respondents.

Admittedly, the Advocate Commissioner and Taluk Surveyor have not been examined. Therefore, I concur with the view of the court below that the application is pre-mature. It would be upto the petitioner to discredit Ext.P3 report and plan by cross-examining the Advocate Commissioner and Taluk Surveyor on the basis of the objections in Exts.P4 and P5. If the court below feels that the objections raised by the petitioner are valid and sustainable, then the court below may remit or set aside the report and plan, as the case may be, for the proper determination of the suit.

Without expressing anything more on Ext.P3 report and plan, I leave the matter to the absolute discretion and wisdom of the court below to decide whether Ext.P3 report and plan are to be set aside/remitted.

Resultantly, in exercise of the power of superintendence of this Court under Article 227 of the Constitution of India, I set aside the cost awarded in the impugned Ext.P7 order and direct the court below to decide whether Ext.P3 report and plan have to be set aside/remitted, after the examination of the Advocate Commissioner and Surveyor based on Exts.P4 and P5, but before the passing of the judgment.

The original petition is disposed of with the above observation.