IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No. 36429 of 2008(J) ---------------------------------------- PETITIONER(S): ------------------------- PULIPARAMBIL BHAGAVATHY CHATHAN TEMPLE, THALIKULAM REPRESENTED BY ITS SECRETARY. BY ADV. SRI.K.A.SREEJITH RESPONDENT(S): --------------------------- RAGHUPATHY, S/O.NARAYANAN, VENGALY AHOAUSE, THALIKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.P. BALACHANDRAN, J. ------------------------------- W.P(C) No.36429 OF 2008-J ------------------------------- Dated this the 10th December, 2008. JUDGMENT This writ petition has been moved by the petitioner who is the plaintiff in O.S.214/2002 on the file of the Sub Court, Thrissur seeking for an order directing the Sub Judge to allow Ext.P1 petition forthwith and to stay all further proceedings in O.S.214/2002 pending disposal of this writ petition. 2. It is submitted that the suit O.S.214/2002 stands posted for trial in the special list tomorrow. There is no justification for the petitioner having not approached this Court sufficiently early for appropriate relief and having approached this Court today so as to have the trial of the suit included in the list adjourned. It is submitted that Ext.P1 is a commission application filed as early as in 2006 that when the suit was dismissed for default the said I.A also happened to be dismissed. But that when the suit was restored Ext.P1 was not restored to file and that naturally when the suit is restored Ext.P1 viz., I.A 1185/2006 also should have been restored and allowed. WPC 36429/2008 2 3. Simply because commission application is filed, without the petitioner moving for orders being passed on the said I.A the court is not expected to take up the I.A suo motu and consider it on merits and pass orders. I have no doubt that if at all the said I.A happened to be dismissed when the suit was dismissed for default, I.A.1185/2006 was not restored as that was not pointed out by the counsel for the petitioner/plaintiff except by moving Ext.P2 application on 7.8.2008. The practice of approaching this Court during the eleventh hour to see that suits included for trial in the special list is got adjourned is not a practice that can be entertained. It is submitted that the suit is for fixation of boundary as well and the suit cannot but be dismissed without a commission report and plan obtained measuring the scheduled property with the help of the taluk surveyor. In the circumstances I order that in the event of the petitioner depositing an amount of Rs.1,000/- (Rupees one thousand only) in the court below by way of cost for being disbursed to the respondent, positively tomorrow and applying for removal of the case from list and to have the commission application heard tomorrow, the court below shall adjourn the trial and pass appropriate orders on the commission application, WPC 36429/2008 3 I.A.1185/2006. In case, cost of Rs.1,000/- is not deposited as ordered positively tomorrow the court below may proceed to dispose of the suit. It is made clear that direction to deposit cost will not be satisfied if cost is paid to counsel for the respondent. Writ petition is disposed of with the above directions. 4. Issue copy of this judgment to the counsel for the petitioner urgently. He is directed to produce the said copy of the judgment in the court below positively tomorrow. K.P.BALACHANDRAN JUDGE jj