IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 WP(C).No. 17665 of 2010(O) -------------------------- AGAINST THE ORDER IN I.A.NO.360 OF 2010 IN O.S.NO.726 OF 2005 OF THE ADDL. MUNSIFF COURT, KOTTAYAM DTD.06-03-2010 PETITIONER: --------------- THE KOTTAYAM DISTRICT CO-OERATIVE BANK LTD.NO.4309,REPRESENTED BY ITS GENERAL MANAGER, DISTRICT CO-OPERATIVE BANK BUILDING, KOTTAYAM-1. BY ADV. SRI.T.R.HARIKUMAR RESPONDENT: --------------- SAIDKUTTY, AGED 55 YEARS, S/O.KUNJUMOHAMMED, VALLITHURUTHU,NOW RESIDING AT JAINA MANZIL, PANAYAZHIPPU, MATTAMBALAM KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17665 of 2010 --------------------------------------- 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/-