Kerala High Court
Narayani M.V vs Kappadan Balan on 6 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
OP(C) NO. 163 OF 2024
IN O.S. NO.209/2015 OF MUNSIFF'S COURT, THALIPARAMBA
PETITIONER(S)/PETITIONER:
1 NARAYANI M.V.,
AGED 83 YEARS, W/O LATE MEETHALE VEETTIL KUNHAPPA
NAIR RESIDING AT MEETHALE VEETTIL POST MORAZHA
VIA MOTTAMMAL, KANNUR, PIN - 670331.
2 RADHA M.V.,
AGED 60 YEARS, D/O LATE MEETHALE VEETTIL KUNHAPPA
NAIR AGED 60 YEARS, RESIDING AT MEETHALE VEETTIL
POST MORAZHA VIA MOTTAMMAL, KANNUR, PIN - 670331.
3 SARASWATHI M.V.,
AGED 57 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
4 SHYAMALA,
AGED 55 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
5 OMANA M.V.,
AGED 53 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
6 GEETHA DEVI,
AGED 49 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
7 MANOHARAN M.V.,
AGED 47 YEARS, S/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
8 SATHYANESAN,
AGED 47 YEARS, S/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
O.P.(C) No.163 of 2024
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9 PRIYA M.V.,
AGED 43 YEARS, D/O LATE MEETHALEVEETTILKUNHAPPA
NAIR RESIDING AT MEETHALEVEETTIL POST MORAZHA VIA
MOTTAMMAL, KANNUR, PIN - 670331.
BY ADVS.
DAISY A.PHILIPOSE
HARIDAS THAIKKANDY
ARJUN P.V.
RESPONDENT(S)/RESPONDENTS:
1 KAPPADAN BALAN,
THE PRESIDENT THIYYA SAMUDAYA SMASANA COMMITTEE,
KAPPADAN, IKYAL KULAM, P.O MORAZHA VIA MOTTAMMAL,
KANNUR, PIN - 670331.
2 THE VILLAGE OFFICER,
MORAZHA VILLAGE OFFICE AMSOM DESOM MORAZHA P.O.,
KANNUR DISTRICT, PIN - 670331.
3 SASIDHARAN M.V.,
AGED 43 YEARS, S/O LATE MEETHALEVEETTIL KUNHAPPA
NAIR D.P WORLD, JEBBAL AL-E, P.O.BOX NO. 17700,
DUBAI, UAE., PIN - 17700.
4 K.V MURALEEDHARAN,
S/O GOPALAN RESIDING AT MORAZHAAMSOM AND DESOM
POST MORAZHA, THALIPARABA, KANNUR, PIN - 670331.
BY ADV R SURENDRAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No.163 of 2024
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J U D G M E N T
Dated this the 06th day of February, 2024 Petitioners herein are the plaintiffs in O.S.No.209/2015, pending before the Munsiff's Court, Thaliparamba. Petitioners are aggrieved by Ext.P4 order, which rejected an application to remit the Commissioner's report and also to note certain additional points occasioned by the alleged constructions made by the respondents herein in the plaint schedule property.
2. Heard the learned counsel for the petitioners and the respondents.
3. Learned counsel for the petitioners would O.P.(C) No.163 of 2024 ..4..
submit that, though Ext.P2 application would appear to seek a remit of the existing Commissioner's report and plan, all what the petitioners actually want is to ascertain the additional constructions made by the respondents herein in the plaint schedule property on 30th and 31st of October, 2023. Learned counsel would submit that the facts pertaining to such additional constructions made by the defendants in the suit, pendente lite, are relevant, especially when the relief sought for includes one for mandatory injunction as well.
4. This application was seriously opposed by the learned counsel for the respondents, pointing out that the entire evidence has been recorded. It was also submitted that if the additional points required to be noted are permitted, the same may also necessitate an amendment of the plaint, which would delay the disposal of the suit. O.P.(C) No.163 of 2024
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5. Learned Government Pleader appears for the second respondent and would leave the matter for appropriate decision by this Court.
6. Having heard the learned counsel appearing for the respective parties, this Court is of the opinion that the additional constructions alleged to have been made on the dates specified, 30.10.2023 and 31.10.2023, by the defendants in the schedule property are liable to be brought to the notice of the court, for which purpose, the instant Ext.P2 commission application has to be allowed, limiting its scope specifically to the matter above referred. This Court finds little merit in the submission made by the learned counsel for the respondents that the entire evidence has been recorded and if Ext.P2 application is allowed, the same may, ultimately, necessitate amendment of the O.P.(C) No.163 of 2024 ..6..
plaint, etc. Going by the allegations in the affidavit in support of the petition, the defendants/respondents have highhandedly trespassed into the plaint schedule property and had made some additional constructions therein, when the suit was pending and when the same was scheduled for trial. The allegations, if true, is a matter of serious concern, since it alters the status-quo with respect to the plaint schedule property, albeit in the absence of an interim order of prohibitory injunction. If that be so, the respondents cannot be heard to submit that the additional aspects sought to be noted need not be brought to the notice of the court, or for that matter, the same may delay the disposal of the suit. This Court notice that the suit is one preferred at the instance of the petitioners herein.
7. For the reasons afore referred, Ext.P2 O.P.(C) No.163 of 2024 ..7..
application, insofar as it seeks to ascertain the alleged constructions made in the plaint schedule property after the last visit of the Commissioner on the property on 18.03.2016, is liable to be reported, for which purpose, Ext.P2 will stand allowed. It is clarified that the above referred aspect alone is required to be noted and reported. Upon filing such report, if the evidence has to be reopened to prove the additional aspects reported, the same shall be done. It will be open for the learned Munsiff to take a call with respect to the application for amendment, if any, preferred by the plaintiff and also any consequent pleadings required on behalf of the defendants. After complying with the above procedural formalities, the court will proceed with the trial and will dispose of the matter expeditiously, since the suit is of the year 2015.
O.P.(C) No.163 of 2024
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8. As requested by the learned counsel for the respondents, the Commissioner shall visit the property without any further delay, at any rate, within a period of fifteen days from the date of receipt of a copy of this judgment and shall prefer the report within five days therefrom. The Original Petition is disposed of as above.
Sd/-
C. JAYACHANDRAN JUDGE Skk//06.01.2024 O.P.(C) No.163 of 2024 ..9..
APPENDIX OF OP(C) NO.163/2024 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF PLAINT IN O.S NO. 209 OF 2015 ON THE FILE OF THE HONORABLE MUNSIFF'S COURT THALIPARAMBA EXHIBIT P2 A TRUE COPY OF APPLICATION NUMBERED AS I.A. NO. 11 OF 2023 IN O.S NO. 209 OF 2015 ON THE FILE OF THE HONORABLE MUNSIFF'S COURT THALIPARAMBA EXHIBIT P3 A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN I.A. NO. 11 OF 2023 IN O.S NO. 209 OF 2015 ON THE FILE OF THE HONORABLE MUNSIFF'S COURT THALIPARAMBA EXHIBIT P4 A TRUE COPY OF THE ORDER IN I.A. NO. 11 OF 2023 IN O.S NO. 209 OF 2015 ON THE FILE OF THE HONORABLE MUNSIFF'S COURT THALIPARAMBA