IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 15377 of 2005(E)
1. N.K.PRADEEP, AGED 32, S/O.LATE
... Petitioner
2. M.S.SOMAN, S/O.SANKARAN, AGED ABOUT
3. RAJAPPAN, S/O.VELAYUDHAN, AGED ABOUT
4. SOBHANAN, S/O.VELAYUDHAN, AGED ABOUT
Vs
1. C.P.HARIDAS, S/O.LATE PAPPUKUNJAN,
... Respondent
2. C.P.GIRIDAS, S/O.LATE PAPPUKUNJAN,
3. C.P.RAJEEVAN, S/O.LATE PAPPUKUTTAN,
For Petitioner :SRI.K.C.ELDHO
For Respondent :SRI.K.C.CHARLES
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :13/06/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 15377 OF 2005
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Dated this the 13th day of June, 2007
JUDGMENT
Ext.P5 order passed by the learned Munsiff on Ext.P4 application
seeking a clarification to the order dt.30.07.04 as to enable
measurement of the schedule properties by the advocate commissioner
already appointed on the basis of the respondent’s title deeds is under
challenge in this proceedings under Article 227. It is submitted that
serious objections were filed by the writ petitioner to Ext.P4 application.
Learned counsel for the petitioner, Sri.K.C.Eldho, submits that the
objections were not considered at all, but passing Ext.P5 an unusually
cryptic order, the learned Munsiff allowed Ext.P4 application. According
to Mr.Eldho the prayers in Ext.P4 are couched in apparently innocuous
words. The objective of the plaintiff is to get away from the impact of his
admissions in the plaint that the extent of the property is only 60 cents.
It was found on the basis of the commissioner’s report already available
that there is no encroachment into 60 cents. Now by requesting that a
measurement of the property be made on the basis of the old title
documents, what the plaintiff is trying to make out is that the actual
extent of property is 5 cents in excess of 60 cents. If the plaintiff is
allowed to do that, serious prejudice will be caused to the petitioner.
WPC No. 15377 of 2005
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Mr.A.Balagopalan, counsel for the respondent submits that the
commission report has already been set aside and it is necessary for a
proper resolution of the issues that a fresh measurement is conducted.
What the plaintiff wants is measurement on the basis of document of
title. The plaintiff is yet to seek amendment of the plaint. Therefore it
cannot be said that Ext.P5 order by itself will cause any prejudice to the
petitioner either in the matter of the suit or in the matter of alleged
violation of the injunction order.
Having considered the rival submissions, I am of the view that it is
not necessary that Ext.P5 order is interfered with by this Court under the
supervisory jurisdiction. It is however made clear that confirmation of
Ext.P5 by this Court will not stand in the way of the petitioner resisting
any subsequent application by the plaintiff for amendment of addition of
pleadings on the ground of prejudice due to the shift in the stand of the
plaintiff regarding the extent of his property. The court below will under
such a contingency take into account the contention that prejudice will
be caused to the petitioner seriously, notwithstanding confirmation of
Ext.P5 by this Court by this judgment.
PIUS C. KURIAKOSE, JUDGE
btt
WPC No. 15377 of 2005
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