Kerala High Court
OP(C)/819/2012 of NITTA GELATIN INDIA LIMITED Vs GOWRI on 31 December 2012
COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 OP(C).NO. 819 OF 2012 (O) ------------------------- I.A.NO.477 OF 2012 IN OS.393/2010, MUNSIFF'S COURT, CHALAKKUDY PETITIONER(S): ------------------------ 1.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934
OP(C).NO. 819 OF 2012 (O)
-------------------------
I.A.NO.477 OF 2012 IN OS.393/2010, MUNSIFF'S COURT, CHALAKKUDY
PETITIONER(S):
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1. NITTA GELATIN (INDIA) LIMITED, AGED 61 YEARS
P.B.NO.4262, 54/1446, SBT AVENUE
PANAMPILLY NAGAR COCHIN-36 REPRESENTED BY MANAGING DIRECTOR
G.SUSEELAN.
2. NITTA GELATINE INDIA LTD., (OSSIEN DIVISION), KATHIKUDAM P.O., KALUR VADAKUMMURRI VILLAGE MUKUNDAPURAM TALUK MUKUNDAPURAM TALUK
REPRESENTED BY ITS EXECUTIVE DIRECTOR B.SHAJIMOHAN.
BY ADVS.SRI.K.ANAND
SMT.LATHA KRISHNAN
RESPONDENT(S):
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1. GOWRI
W/O.MADHAVAN, KUNJUVALAPPIL KALLUR VADAKUMMURRY VILLAGE, KAKKAD DESOM MUKUNDAPURAM TALUK-680317.
2. ANIL KUMAR,
S/O.MADHAVAN, KUNJUVALAPPIL KALLUR VADAKUMMURRY VILLAGE, KAKKAD DESOM MUKUNDAPURAM TALUK-680317.
3. SUNIL KUMAR,
S/O.MADHAVAN, KUNJUVALAPPIL KALLUR VADAKUMMURRY VILLAGE, KAKKAD DESOM MUKUNDAPURAM TALUK-680317.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31-12-2012, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(C) No.819 of 2012
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1TRUE COPY OF THE COMMISSION REPORT DATED27.2.2011.
EXHIBIT P2TRUE COPY OF THE COMMISSION APPLICATIONDATED 29.2.2012.
EXHIBIT P3TRUE COPY OF THE ORDER DATED 03.03.2012 IN I.A.NO.477 OF 2012 OF THE MUNSIFF'S COURT, CHALAKKUDY.
RESPONDENT(S)' EXHIBITS:
NIL
TRUE COPY
P.S. TO JUDGE
THOMAS P.JOSEPH, J.
====================================O.P(C) No.819 of 2012 ====================================Dated this the 31[st] day of December, 2012
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J U D G M E N T
Exhibit P3, order dated 03.03.2012 on I.A.No.477 of 2012in O.S. No.393 of 2010 of the Munsiff's Court, Chalakkudy isunder challenge in this Original Petition at the instance of thedefendants.
2. Respondents 2 and 3, along with the deceased 1[st]respondent filed the suit for prohibitory injunction to restrain thepetitioners from trespassing into the suit property. Whileresisting the suit, petitioners made a counter claim for adecree to fix eastern boundary of the counter claim scheduleproperty and for prohibitory injunction to restrain respondents 2and 3, deceased 1[st] respondent and the men under them fromtrespassing into the counter claim schedule property orobstructing erection of a gate on the eastern compound wall oftheir property.
3. Petitioners filed I.A. No.477 of 2012 (Ext.P2) toappoint an Advocate Commissioner to ascertain certain matters.That application was resisted by respondents 2 and 3 and the -: 2 :- deceased 1[st] respondent.
4. The learned Munsiff, by Ext.P3, order dismissed theapplication for the reason that the application is belated, earlierreports of the Advocate Commissioner show existence of acompound wall on the eastern side of the property claimed bythe petitioners and that there is no prayer for recovery of anypossession of the property from respondents 2 and 3 and thedeceased 1[st] respondent and situated beyond the compoundwall. The further reason stated by the trial court was that thedocument of title of petitioners was not produced.
5. It is contended by the learned counsel that the trialcourt has not adverted to the various contentions raised by thepetitioners in their counter claim. It is also contended thatdismissal of the application merely for the reason that it beingbelated is erroneous.
6. Petitioners have produced a copy of the counterclaim. In paragraph 8 it is stated that petitioners have keptsome portion of the property outside the compound wall for itsconstruction and protection. In paragraph 9 of the counter claimit is averred that eastern boundary of the counter claimschedule property is to be fixed and respondents 2 and 3 and -: 3 :- the deceased 1[st] respondent and their men are to be restrainedfrom trespassing into the counter claim schedule property andobstructing erection of a gate on the eastern compound wall ofthe said property.
7. Learned Munsiff has pointed out that the earlierreport shows existence of a compound wall on the eastern sideof the property of the petitioners and there is no prayer forrecovery of possession. But it would appear from the counterclaim that petitioners claim to be in possession of that portionof the property on the east of the compound wall and that iswhy they have prayed for a decree for prohibitory injunction.Even otherwise, even if recovery of possession is required it isnot as if after the Advocate Commissioner files report as prayedfor in I.A. No.477 of 2012, petitioners cannot seek amendmentof the counter claim to seek appropriate relief.
8. So far as non-production of the relevant documentsis concerned, learned counsel submitted that petitioners areprepared to produce all their documents concerning the counterclaim schedule property in the trial court.
9. Having regard to the facts and circumstances I aminclined to hold that a measurement of the counter claim -: 4 :- schedule property is essential to adjudicate the dispute involvedin the counter claim. Hence the dismissal of I.A. No.477 of 2012cannot be sustained.
10. However, it is for the trial court to decide as to whatall matters are to be ascertained by the AdvocateCommissioner and the Surveyor who are to be appointed by thetrial court pursuant to the prayer made in the application. Ileave those matters for the decision of the trial court afterhearing both sides.
Resultantly, the Original Petition is allowed as under:
(i) Exhibit P3, order dated 03.03.2012 dismissing I.A.No.477 of 2012 in O.S .No.393 of 2010 of the Munsiff's court,Chalakkudy is set aside.
(ii) It is found that a measurement of the counter claimschedule property with appropriate documents is necessary fora just decision of the dispute involved in the counter claim.
(iii) The learned Munsiff, Chalakkudy is directed todecide what all matters are to be ascertained by the AdvocateCommissioner and the Surveyor to be appointed by that court,as prayed for in I.A. No.477 of 2012, after hearing both sides.
O.P(C) No.819 of 2012
-: 5 :-
(iv) Petitioners shall produce their documentsconcerning the counter claim schedule property in trial court.
THOMAS P. JOSEPH, JUDGE.
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