IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17665 of 2010(O)
1. THE KOTTAYAM DISTRICT CO-OERATIVE BANK
... Petitioner
Vs
1. SAIDKUTTY, AGED 55 YEARS,
... Respondent
For Petitioner :SRI.T.R.HARIKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/06/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.No.17665 of 2010
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Dated this 08th day of June, 2010
JUDGMENT
Plaintiff in O.S.No.726 of 2005 of the court of learned
Munsiff, Kottayam is the petitioner. It filed THE suit for
prohibitory injunction against respondent/defendant altering
boundary between plaint A and B schedule properties, trespassing
into A schedule and committing waste therein. Respondent
resisted the suit and made counter claim against petitioner. On the
request of petitioner an Advocate Commissioner was appointed.
Commissioner submitted report and plan complaining that
Commissioner has not measured the property with reference to the
old survey records petitioner filed I.A.No.3638 of 2007 to remit the
report and plan with direction to the Commissioner to measure the
property on the basis of old survey records. That application was
dismissed by the learned Munsiff which was challenged in this
court in W.P.C.No.22374 of 2008. This court vide judgment dated
27-07-2008 refused to interfere with dismissal of I.A.No.3638 of
2007 but permitted petitioner to raise its contentions in the appeal
from the judgment of trial court if it went against petitioner.
Thereafter, petitioner remained absent and the suit was dismissed.
W.P.C.No.17665 of 2010 : 2 :
Counter claim was decreed in favour of the respondent. Petitioner
challenged that judgment and decree in the court of learned
District Judge in A.S.No.275 of 2008. Learned District Judge as per
judgment dated 12-11-2009 allowed the appeal and remitted the
case to the trial court with liberty to both sides to adduce evidence.
In the light of the observation that parties are given opportunity to
adduce evidence, petitioner filed I.A.No.360 of 2010 to remit the
report and plan of the Advocate Commissioner for fresh
measurement based on old survey records and title deeds of parties
and locate the compound wall. That application was dismissed by
the learned Munsiff vide the impugned order which is under
challenge in this writ petition. Learned counsel for petitioner
contends that this court while disposing of W.P.C.No.22374 of 2008
permitted petitioner to take up its contentions as to correctness of
the report and plan (Exts.C1 and C1(a)) and the appellate court,
setting aside judgment and decree of trial court has given liberty to
petitioner to adduce further evidence and it is as part of that,
petitioner filed I.A.No.360 of 2010. According to the learned
counsel, without measurement of the property based on old survey
records and title deeds real dispute between the parties cannot be
settled.
2. I am afraid that in the light of dismissal of I.A.No.3638
of 2007 which has been confirmed by this court in W.P.C.No.22374
of 2008, petitioner cannot rake up the same issue again, for,
W.P.C.No.17665 of 2010 : 3 :
principles of res judicata applies to different stages of the same
proceeding as held in U.P.State Road Transport Corporation
Vs. State of U.P & Another (AIR 2005 SC 446). Appellate court
while remanding the case has not disturbed the order on
I.A.No.3638 of 2007 or interfer with Exts.C1 and C1(a) and given
opportunity to the parties to get the report remitted. Appellate
court has also not made any comment on the acceptability or
otherwise of that report and plan. Appellate court remanded the
case only because there was no discussion in the judgment on the
counter claim raised by respondent. So much so, order on
I.A.No.3638 of 2007 as confirmed by this court in W.P.C.No.22374
of 2008 has to stand. So far as that order stands it is not open to
the petitioner to file fresh application for the same purpose. So far
as the prayer in I.A.No.360 of 2010 to measure the property with
the title deeds is concerned, no such demand was made either in
the application for commission or in I.A.No.3638 of 2007. Hence at
this belated stage that request cannot be entertained. I make it
clear that as observed in the judgment in W.P.C.No.22374 of 2008
it will be open to the petitioner to challenge correctness of Exts.C1
and C1(a) in the appeal that may be preferred against judgment of
the trial court if at all that goes against it.
With the above observation the writ petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-