Gourikuttiamma @ Gouriamm vs Mony on 27 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 25871 of 2008(E)


1. GOURIKUTTIAMMA @ GOURIAMM, D/O PAMADATH
                      ...  Petitioner

                        Vs



1. MONY, AGED 47, S/O AALISSERY THETTAYIL
                       ...       Respondent

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :27/08/2008

 O R D E R
                  M.SASIDHARAN NAMBIAR, J.
                     ...........................................
                   WP(C).No. 25871                OF 2008
                    ............................................
       DATED THIS THE            27th        DAY OF AUGUST, 2008

                                JUDGMENT

Petitioner is the plaintiff and respondent, the defendant in

O.S.69 of 2006 on the file of Munsiff Court, Aluva, a suit for

fixation of the boundaries and for recovery of possession. A

Commission was appointed. Commissioner submitted Ext.P6

report and plan. Petitioner thereafter filed I.A.1840 of 2008, an

application to remit the report and plan to the Commissioner to

identify the property with reference to the plan produced by

respondent. Learned Munsiff, under Ext.P9 order, dismissed the

application. It is challenged in this petition filed under Article

227 of Constitution of India.

2. Learned counsel appearing for petitioner was heard.

3. In view of the order to be passed in this petition, it is

not necessary to issue notice to respondent.

4. Ext.P8 application was dismissed by learned Munsiff on

two grounds. Firstly, it was found that petition is highly belated.

Secondly, it was found that petitioner being the plaintiff, is the

master of her suit and she need not identify the property with

reference to the case pleaded by respondent. Learned counsel

WP(C) 25871/2008 2

pointed out that the claim for kudikidappu was settled before

Land Tribunal in O.A. 2 of 1996, whereunder Ext.P1 compromise

petition was filed and accepting the compromise petition, O.A

was disposed and under the compromise petition, the property

which could be claimed by respondent was fixed with reference

to Ext.P7 plan and the prayer in Ext.P8 application is only to fix

the property with reference to that plan and for a proper

resolution of the dispute between the parties, learned Munsiff

should have allowed the application.

5. For the sole reason that petition is belated, learned

Munsiff should not have dismissed the application. Even if there

was delay, delay could be compensated by cost. Similarly, when

petitioner himself wanted to identify the property, admitting the

case of respondent, it cannot be said that petitioner is not to

identify the property based on the document filed by the

respondent. In such circumstances, Ext.P9 order is quashed.

Learned Munsiff is directed to pass fresh order in I.A.1840 of

2008 after hearing the parties in accordance with law.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-