Lalitha Bai vs Binu Vasanth on 5 August, 2008

Kerala High Court
Lalitha Bai vs Binu Vasanth on 5 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 23547 of 2008(C)


1. LALITHA BAI, D/O.AMBUJAKSHI AMMA,
                      ...  Petitioner

                        Vs



1. BINU VASANTH, S/O.T.SETHUNATH,
                       ...       Respondent

2. BINDHU VASANTH, D/O.T.SETHUNATH,

3. BAIJU VASANTH, S/O.T.SETHUNATH,

                For Petitioner  :SRI.G.S.REGHUNATH

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :05/08/2008

 O R D E R
                  M.SASIDHARAN NAMBIAR, J.
                    ...........................................
                   WP(C).No. 23547 OF 2008
                    ............................................
        DATED THIS THE 5th                 DAY OF AUGUST, 2008

                               JUDGMENT

Petitioner is the second defendant and respondents, the

plaintiffs in O.S.1699 of 2004 on the file of Munsiff Court,

Thiruvananthapuram. Suit was filed for declaration of their title

to plaint G schedule and to recover possession of plaint H

schedule property and for a mandatory injunction to demolish

the structure in plaint H schedule property and for incidental

reliefs. Respondents filed I.A.6909 of 2006, an application for

appointment of a Commission to measure and locate plaint G and

H schedule properties. Petitioner filed Ext.P5 detailed objection

consisting of 14 paragraphs.

2. Learned Munsiff, under Ext.P6 order, allowed the

petition, which reads as follows:-

“Heard both sides. As a report and

plan is highly necessary for proper

adjudication, I.A is allowed.

            Advocate Gireesh P Raja                          is

            appointed as Commissioner and

            Sri      K.R.Chandrakumar                       as

WP(C) 23547/2008                2

             Surveyor.    Commission      Bata

             Rs.2000/-   and  Surveyor    Bata

             Rs.600/- shall be deposited. Note

             the points and file Commission

             Report".

This petition is filed under Article 227 of Constitution of India

challenging Ext.P6 order.

3. Learned counsel appearing for petitioner was heard.

4. In view of the order to be passed in this petition, it is not

necessary to issue notice to respondents.

5. The argument of the learned counsel is that in spite of

Ext.P5 objection, learned Munsiff did not consider the objection

and allowed the application and therefore Ext.P6 order is to be

quashed.

6. Though learned Munsiff allowed the application finding

that a report by a Commissioner is highly necessary for

adjudication of the dispute involved in the suit, there is force in

the submission of the learned counsel that learned Munsiff did

not consider Ext.P5 objection. Learned counsel pointed out that

respondents have earlier instituted a suit and the properties

were identified and a report was submitted and when the suit

WP(C) 23547/2008 3

was in the special list, it was withdrawn without obtaining liberty

to file fresh suit and the description of the plaint schedule

properties are not in accordance with the partition deed under

which respondents are also claiming title and therefore learned

Munsiff should not have appointed the Commission without

considering the objection.

7. As is clear from Ext.P6 order, learned Munsiff did not

consider the objections raised by petitioner. Though an order

could be brief, it cannot be blank. As Ext.P6 order is blank, the

order is quashed. I.A.6909 of 2006 is remanded to Additional

Munsiff Court, Thiruvananthapuram for fresh disposal in

accordance with law. Learned Munsiff to consider the objections

raised by petitioner to I.A.6909 of 2006 and pass appropriate

orders after hearing both the parties in accordance with law.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-

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