IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24853 of 2010(O)
1. NARAYANANKUTTY NAIR, CHEKKAPPARAMBIL,
... Petitioner
2. ASOKAN, EDAKKALATHIL, PARATHERI AMSOM
3. JANARDANAN, KARAKKUNNUMMAL,
4. GEETHA, MUTHUVADATHU,
5. MOHAN, CHERIYAMVEETTIL, NELLIKKODE
6. BALAKRISHNAN, VIRUPPIL,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE REVENUE DIVISIONAL OFFICE,
For Petitioner :SRI.G.UNNIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/08/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.24853 of 2010
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Dated this the 10th day of August, 2010.
JUDGMENT
Plaintiffs in O.S.No.24 of 1996 of the court of learned Additional Munsiff-II,
Kozhikode are the petitioners before me. They are challenging order dated
19.02.2010 passed on Ext.P5 and Exts.P8 and P9 orders. Petitioners instituted
the suit way back in 1996 for a decree for prohibitory injunction against
demolition of a structure situated in the plaint schedule property. They came
with the case that the property belonged to the late Chandukutty and while he
was in possession and enjoyment, the State acquired 1.13 acres for formation of
Calicut-Mavoor road as per award No.16 of 1961 (Ext.P1) and in the year 1964
Calicut Corporation granted permission to Chandukutty to construct building in
the remaining land having a lesser extent than three cents (as per Ext.P2). It is
while so, that respondents initiated proceedings against petitioners and others
under the Kerala Land Conservancy Act for demolition of structure in the
remaining portion of property which is scheduled in the plaint. Petitioners
applied for issue of a commission to identify the property but that was rejected
by the learned Munsiff which was set aside by this Court as per Ext.P3,
judgment in W.P.(C) No.31938 of 2006 and accordingly an Advocate
Commissioner was appointed. Commissioner filed Ext.P4, report with which
petitioners were not satisfied. They filed Ext.P5, application (I.A.No.1146 of
2009 to remit Ext.P4, report to the Advocate Commissioner with direction to
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supply the omission after rectifying the mistake. Learned Munsiff allowed that
application on 01.07.2009 and accordingly, petitioners deposited commission
batta. According to the petitioners Advocate Commissioner did not visit the
property, nor was any intimation given to them. No interim report also was filed
by the Advocate Commissioner. On 07.11.2009 petitioners represented in court
that Commissioner has not visited the property and thereon court issued notice
to the Commissioner who appeared in court on 15.01.2010 and reported that
petitioners are no co-operating with her to identify the property. On 19.02.2010
vide order passed on Ext.P5, application court below re-called intimation and
direction given to the Advocate Commissioner and closed I.A.No.1146 of 2009
(to remit the report to the Advocate Commissioner). On 14.07.2010 petitioners
filed I.A.No.2931 of 2010 (Ext.P6) to appoint the same Commissioner or any
other advocate to inspect the property and submit a report and plan taking into
account all objections in I.A.No.1146 of 2009. On 19.07.2010 petitioners filed
I.A.No.3024 of 2010 (Ext.P7) with a delay of 119 days seeking review of order
dated 19.02.2010 on Ext.P5, application referred to above. Learned Munsiff
condoned the delay on payment of cost of Rs.500/- but I.A.No.3024 of 2010
(Ext.P7) was dismissed as per Ext.P8, Order. Consequently, I.A.No.2931 of
2010 (Ext.P6) was also dismissed as per Ext.P9, order dated 27.07.2010. I
have heard learned counsel for petitioners and learned Government Pleader
who took notice for respondents.
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3. It is contended by learned counsel that the statement of Advocate
Commissioner that petitioners did not co-operate with her in executing the
commission warrant is not correct and no notice was given by her to them about
any proposed inspection. According to the learned counsel petitioners were
moving from pillar to pillar to get property measured with reference to the plan
prepared at the time of acquisition of property in the year 1961 and as directed
by the learned Munsiff while allowing Ext.P5, application on 01.07.2009. It is
also contended by learned counsel that respondents had not produced the said
plan at any point of time either in court or before the Advocate Commissioner.
Learned counsel states that one reason for dismissal of Ext.P7, application is the
delay in filing that application. But that delay was condoned by the learned
Munsiff on payment of cost of Rs.500/- and in that circumstances it was not
justifiable to dismiss I.A.No.3024 of 2010. Learned Government Pleader
appearing for respondents contended that the suit is pending from 1996 onwards
and that there was inaction on the part of petitioners.
4. Order on Ext.P5, application shows that on 01.07.2009 learned
Munsiff ordered that Ext.P4, report and plan will be remitted to the Advocate
Commissioner for further inspection and report . It is on the statement of
Advocate Commissioner about non co-operation of petitioners that the order
was re-called on 19.02.2010. Thereafter it ofcourse took five months to the
petitioners to file Ext.P6, application for appoint of (the same) Commissioner or
another Commissioner to inspect the property and prepare report and plan and
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Ext.P7, application for review was filed after 119 days after the order dated
19.02.2010. No doubt, there is delay on the part of the petitioners. But it is seen
that the delay in filing Ext.P7, application has been condoned by the learned
Munsiff on payment of cost. After having decided to condone the delay obviously
for the reason that learned Munsiff thought that Ext.P7, application has to be
heard on merit there is no point in Ext.P7 being dismissed for the reason of
delay. Petitioners have stated about the mistake on the part of clerk of counsel
in noting entries in the A diary which caused the delay. I am not very much
impressed by that explanation. But as I stated, delay in filing Ext.P7, application
has been condoned by the learned Munsiff. In the circumstances considering
nature of dispute involved between parties I am persuaded to think that
petitioners must be given an opportunity to get Ext.P4, report remitted to the
Advocate Commissioner. I am therefore inclined to allow the request. Since the
impugned order on Ext.P5, application is being reviewed as requested for in
Ext.P7, application it is not necessary to entertain I.A.No.2931 of 2010.
Resultantly this Writ Petition is allowed in the following lines:
i. Ext.P8, order is set aside, I.A.No.3024 of 2010 is allowed
and the impugned order dated 19.02.2010 on Ext.P5, application will stand
reviewed.
ii. In view of the above order it is not necessary to set aside
Ext.P9, order on Ext.P6, application (I.A.No.2931 of 2010).
iii. Learned Munsiff is directed to appoint the same Advocate
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Commissioner or another Commissioner as is found suitable to execute the
order dated 01.07.2009. Both sides shall render necessary assistance to the
Advocate Commissioner.
iv. It is made clear that if there is non co-operation on the part
of petitioners in Advocate Commissioner executing the work it will be open to
the learned Munsiff to close Ext.P5, application and proceed with the suit as
provided under law.
THOMAS P.JOSEPH,
Judge.
cks