LAWS(KER)-2021-8-100

HARIKUMAR Vs. SAIJU

Decided On August 11, 2021
HARIKUMAR Appellant
V/S
Saiju Respondents

JUDGEMENT

(1.) Petitioners are the plaintiffs in O.S. No. 405 of 2017 on the files of the Munsiff's Court, Punalur. The prayer in the suit is to declare Sale Deed No. 898 of 2015 as void and to set aside the document. The other prayer is for a permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property and from committing waste therein. The plaint schedule property is 11.73 Ares (29 cents) with a building. The 1st respondent has filed O.S.No.392 of 2017 pertaining to the very same property. The same Advocate Commissioner appointed in both the suits, conducted inspection and filed separate reports. Thereafter, the petitioners filed an interlocutory application in O.S.No.405 of 2019, seeking the appointment of a Civil Engineer as Commissioner, to measure the building and to assess its value. Pending that application, the parties approached this Court challenging certain other orders. By Exhibit P4 common order, this Court disposed the original petitions directing the suits to be disposed of within eight months. The review petition filed against Exhibit P4 judgment was dismissed as per Exhibit P5 order and the trial court was directed to dispose the suits before the ensuing summer vacation. Thereafter, the petitioner's application for deputing a Civil Engineer was dismissed by the trial court as per Exhibit P7 order. Aggrieved, this original petition is filed.

(2.) Sri. B.Krishna Mani, learned counsel for the petitioners contended that Exhibit P7 order is patently illegal, inasmuch as the order is passed without taking into account the relevant aspects. It is contended that a report containing the exact plinth area of the building in the plaint schedule property and its value is highly essential for a just and proper decision in the case. It is submitted that the specific averment in the suit is that the document sought to be cancelled, though styled as a sale deed, is only a security document. It is pointed out that the plinth area of the building is 731 square feet as per Exhibit P9 sketch produced along with the Advocate Commissioner's report in O.S.No.405 of 2017 and 831 square feet in Exhibit P10 report filed in O.S. No. 392 of 2017. Further, in Exhibit P8 Form appended to the Sale Deed, the area of the building is mentioned as 400 square feet, whereas in Exhibit P11 proceedings of the Secretary, Eroor Grama Panchayat, the area is shown as 80 square metre. It is contended that in view of the disparity in the area in the reports and the documents, it is highly essential to get the area ascertained through a qualified engineer.

(3.) Sri. P.Santhalingam, learned Senior Counsel appearing for the 1st respondent contended that the commission application is bereft of bona fides and the only intention behind the application is to protract the suits. It is contended that the petitioners did not file any objection to the Advocate Commissioner's reports and hence, they are precluded from seeking the appointment of another Commissioner. It is contended that this Court having directed the suit to be disposed of before the summer vacation of 2021, the dilatory tactics of the petitioner was rightly repelled by the trial court.