Kerala High Court
Chemmaralath Mohanan vs C.K.Mahamood @ C.K.Mahamood Moidu on 11 January, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939
OP(C).No. 2673 of 2017
PETITIONER:
1 CHEMMARALATH MOHANAN, AGED 58 YEARS,
LOGANS ROAD, THALASSERI.
2 SINDHU, W/O MOHANAN,
LOGANS ROAD, THALASSERI.
BY ADV.SRI.K.P.BALASUBRAMANYAN
RESPONDENT(S):
1. C.K.MAHAMOOD @ C.K.MAHAMOOD MOIDU
S/O LATE T.T.P.MOIDU,
JUBILEE ROAD, THALASSERY.
2. C.K.ASHARAF, S/O LATE T.T.P.MOIDU,
6TH FLOOR, CELESTRAL APARTMENT,
T.T.ROAD, KANNUR.
3. C.K. SAREENA HARIS,D/O LATE T.T.P. MOIDU,
TALAP, KANNUR.
4. C.K. SUBAIDA,D/O LATE T.T.P MOIDU,
3RD FLOOR, CELESTRAL APARTMENT,
T.T.ROAD, KANNUR.
5. ABDUL RASHEED C.K.S/O LATE T.T.P.MOIDU,
AFROZA MANZIL, MOORIYAD P.0.,
KUTHUPARAMBA, KANNUR-670643.
R1-R5 BY ADVS. SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2018,ALONG WITH
OP(C) 2675 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PBS
OP(C).No. 2673 of 2017 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT OS 376/2016 MUNSIFF
COURT, THALASSERY DT. 17.10.2016.
EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF
I.A.2515/2016 DT.17.10.2016.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT.
EXHIBIT P4 TRUE COPY OF THE COUNTER IN I.A.2515/2016.`
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF
I.A.2516/2016 DT.17.10.2016.
EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT & PETITION
I.A.NO.2906/2016.
EXHIBIT P7 TRUE COPY OF THE COUNTER IN I.A.2906/ DT. 25.01.2017.
EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT & PETITION I.A.1518/2017.
EXHIBIT P9 TRUE COPY OF THE COUNTER IN I.A.1518/2017
DT.10.07.2017.
EXHIBIT P10 TRUE COPY OF THE COMMISSIONER REPORT DT.
14.07.2017.
EXHIBIT P11 TRUE COPY OF THE ORDER IN IA 2906/2016 DT. 14.07.2017.
EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF
I.A.1537/2017 DT.13.07.2017.
EXHIBIT P13 TRUE COPY OF THE COUNTER IN I.A.1537/2017.
EXHIBIT P14 TRUE COPY OF THE ORDER IN IA 1537/2017 DT. 16.08.2017.
RESPONDENT'S EXHIBIT NIL
/TRUE COPY/
PA TO JUDGE
PBS
ALEXANDER THOMAS, J.
==================
O.P(C).Nos.2673 & 2675 of 2017
==================
Dated this the 11th day of January, 2018
O R D E R
These two Original Petitions (Civil) arise out of two different impugned interlocutory orders passed by the trial court, which in turn arise out of the same suit. The parties in both the cases are the same. The petitioners herein are defendants in the suit for recovery of possession and injunction. The suit was stated to be filed at a time when the petitioners/ defendants had collected materials for carrying out certainly urgent repairs to the building, where the petitioners were residing for the last so many years. That in view of the order of injunction, the petitioners herein were not able to complete the repairs. That an application for commission was also duly filed by the respondents herein along with the suit. It is stated that as the petitioners herein had gone out of the house, the Advocate commissioner could not inspect the house. The petitioners filed an application to permit them to complete the works. That as per the orders on the application filed by the petitioners, the commission again visited the house and reported on the conditions of the house. The court below had also permitted the petitioners to carry out the repairs without altering the structures. The petitioners completed the repairs under the supervision of the commissioner. It is further brought to notice that the interim order of O.P(C)2673/17 & cc. - : 2 :-
injunction is still in force. Thereafter the respondents had filed the present application [one is Ext.P-12 in O.P(C).No. 2673/2017 viz. I.A.No. 1537/ 2017 for a direction of the trial court to remit the commissioner's report and to direct the commissioner to inspect the property with the assistance of the surveyor by verifying the records and had also filed Ext.P-12 in O.P(C).No. 2675/2017 viz., I.A.No.1579/2017 for permission to serve interrogatories on the petitioners. The petitioners herein had filed separate counter affidavits to these two I.As. Ext.P-13 in the first O.P(C). is the counter affidavit filed to the former I.A. and Ext.P-13 in the second O.P(C). is the counter affidavit filed by the petitioners in the latter I.A. The court below has passed impugned orders dated 16.8.2017, whereby the prayers made in both the I.As. filed by the respondents/plaintiffs have been allowed. Ext.P-14 in O.P(C).No. 2675/2017 is the impugned order dated 16.8.2017 passed on the former I.A. for remitting the commissioner's report and Ext.P-14 in the second O.P. is the impugned order dated 16.2.2017 passed by the court below in the latter I.A. It is these orders that is under challenge in these two Original Petition (Civil).
2. Heard Sri.K.P.Balasubramanian, learned counsel appearing for the petitioners/defendants and Sri.K.Mohanakannan, learned counsel appearing for the respondents/ plaintiffs.
3. The impugned order produced as Ext.P-14 in O.P(C).No. 2673/2017 reads as follows:
O.P(C)2673/17 & cc. - : 3 :-
"ORDER
Considering the rival contentions made by the parties. I am of the view that for the fair and transparent disposal of the case an undefective commission report is necessary. The identification of the property is highly essential and Taluk Surveyor assistance is also ordered. Hence Commission Report is remitted back to the same Advocate Commissioner. Pay Rs.2,000/- as batta directly. Pay batta to the Taluk Surveyor Rs.2,000/- and fle voucher. Both parties are directed to file work memo. Advocate Commissioner should note down the objections raised by both parties and file Commission Report accordingly. For revised commission report on 30-08-2017." The order impugned in O.P(C).No. 2675/2017 produced as Ext.P-14 reads as follows: "O R D E R Petition filed under Order 11 Rule 1 of CPC. This petition is filed to serve accompanying interrogatory on the defendants with a direction to answer the same. Respondent entered appearance and filed counter stating that the above petition is unnecessary and only for prolonging and protracting the injunction petition.
2. Heard both sides. The interrogatories furnished by the Petitioner/Plaintiff is geniune. Even though respondent filed written statement and furnish documents that will not give satisfactory explanations to interrogatories furnished. All the interrogatories delivered are relating to matters in question. For a fair and transparent disposal interrogatories if answered will be useful No prejudice will be caused to respondent/defendant. Hence Allowed. Call on 30-08-2017."
4. Both sides have made submissions regarding the merits of their respective versions. In the nature of the orders proposed to be passed in this petition, this Court feels it fit and appropriate not to render any final opinion on the rival contentions raised by the parties.
5. On a perusal of the impugned order it is seen that the contention raised by Sri.K.P.Balasubramanian, learned counsel appearing for the petitioners that those orders are passed in a cryptic manner by the court below without giving proper reasons, appears to be correct and tenable. Without in any manner getting into the controversy of the matter, this Court is of the considered opinion that the matter requires interdiction O.P(C)2673/17 & cc. - : 4 :-
at the hands of this Court so as to remit the two I.As. to the court below for consideration afresh. In order to facilitate this, it is ordered that the impugned order dated 16.8.2017 on I.A.No. 1537/2017 and order dated 16.8.2017 on I.A.No. 1579/2017 will stand set aside. The said I.As. will stand restored to the file of the court below concerned. The trial court will hear the parties the afresh and after considering the respective contentions, will pass orders afresh on those two I.As. giving detailed reasons for arriving at the conclusions therein. It is made clear that this Court has not expressed any opinion on the merits of the matter and all such matters are fully best left be decided to the domain and province of the trial court in considering the abovesaid I.As afresh. Orders in that regard should be passed by the trial court without much delay, preferably within a period of four weeks from the date of production of a certified copy of this judgment.
The petitioners will produce a certified copy of this judgment before the court below concerned for necessary information.
With these observations and directions, the Writ Petition (Civil) stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
TRUE COPY
P.S. TO JUDGE