IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 OP(C).No. 2283 of 2011(O) -------------------------------------- AGAINST THE ORDER DATED 23/06/2011 IN IA 1883/2011 IN OS.807/2008 of PRL.SUB COURT,IRINJALAKUDA PETITIONER: ------------------ 1. ABDUL KADER, S/O.ULLISSERY MOIDU ERIYDAD VILLAGE, MADAVANA DESOM KODUNGALLUR TALUK. 2. IBRAHIM KUTTY, S/O.VALIYAVEETTIL BEERAN ERIYDAD VILLAGE, MADAVANA DESOM KODUNGALLUR TALUK. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): ------------------------- 1. MUBARAK, W/O.PAZHUPARAMBIL SIDDQUE, ERIYDAD VILLAGE, MADAVANA DESOM, KODUNGALLUR TALUK 680 664. 2. SIDDQUE ,PAZHUPRAMBIL HOUSE, ERIYDAD VILLAGE, MADAVANA DESOM, KODUNGALLUR TALUK 680 664. 3. THE SECRETARY, ERIYAD GRAMA PANCHAYAT ERIYAD,KODUNGALLUR 680 664. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1,2 SRI.K.RAVI (PARIYARATH) FOR R1,2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: o.p(c) no.2283 of 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER. EXHIBIT P2 TRUE COPY OF THE PETITION I.A. NO.4176 OF 2010 TO SET ASIDE THE REPORT. EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT FILED BY THE PANCHAYATH. EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT FILED BY THE PANCHAYATH. EXHIBIT P5 TRUE COPY OF THE PETITION I.A. NO.1883 OF 2011 TO DISPOSE OF I.A. NO.4176 OF 2010. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23.6.2011 IN I.A. NO.1883 OF 2011. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2283 of 2011 ==================================== Dated this the 28th day of September, 2011 J U D G M E N T Defendants 1 and 2 in O.S. No.807 of 2008 of the court of learned Sub Judge, Irinjalakuda are the petitioners before me challenging Ext.P6, order declining to dispose of I.A. No.4176 of 2010 as prayed for in Ext.P5, application (I.A. No.1883 of 2011). 2. Respondent 1 and 2 filed the suit against petitioners under Section 91 of the Code of Civil Procedure alleging public nuisance. According to them, petitioners trespassed into a portion of the public road and annexed that portion to their property. Having regard to the contentions raised by petitioners, leaned Sub Judge appointed a survey commission to measure the property and submit report. Commissioner submitted report and plan. Petitioners filed I.A. No.4176 of 2010 to set aside the said report and plan and I.A. No.4127 of 2010 to direct the local Panchayat (third respondent herein) to produce the plan in its custody contending that in the same matter the third respondent had conducted an enquiry, measured the property and prepared a plan which supports contention of petitioners. Learned Sub Judge O.P(C) No.2283 of 2011 -: 2 :- granted time to the third respondent to produce the plan but it was not produced. In the meantime on I.A. No.4176 of 2010 the Advocate Commissioner was examined in part. Further examination was adjourned awaiting production of the plan (said to be) prepared by the third respondent. Third respondent filed an affidavit stating that the plan could not be traced. Thereon learned Sub Judge posted I.A. No.4176 of 2010 to be decided along with the suit. Petitioners filed Ext.P5, application to dispose of I.A. No.4176 of 2010. That application was dismissed as per Ext.P6, order which is under challenge. Learned counsel for petitioners submitted that if I.A. No.4176 of 2010 is decided in the course of trial it will only prolong the trial and cause inconvenience to the parties. Hence it is only proper that I.A. No.4176 of 2010 is disposed of before trial commenced. 3. Learned counsel of respondents 1 and 2 contended that the order on I.A. No.4176 of 2010 is a consented order as is revealed from the observations in paragraph 12 of Ext.P6, order where it is stated that parties had agreed to be decided I.A. No.4176 of 2010 along with the suit. Therefore challenge to Ext.P6, order cannot be sustained. 4. True, in paragraph 12 of Ext.P6, order there is an O.P(C) No.2283 of 2011 -: 3 :- observation that parties had agreed that I.A. No.4176 be decided along with the suit. It is also true that if petitioners are aggrieved normally their remedy was by way of a review and not to challenge Ext.P6, order. But having regard to the peculiar facts and circumstances of the case, directing petitioners to seek a review of Ext.P6, order would only further prolong the proceedings in the case. Hence I am inclined to consider the challenge to Ext.P6, order notwithstanding the observations contained in paragraph 12 of Ext.P6, order. 5. Though, third respondent was directed by the learned Sub Judge to produce the plan and time was granted, no such plan was produced whatever be the reason thereof. Learned counsel for petitioners submitted that if there is no plan available with or traceable by the third respondent, learned Sub Judge could dispose of I.A. No.4176 of 2010 without the assistance of such plan. That submission is recorded. 6. The appropriate course as it appears to me is to direct the learned Sub Judge to dispose of I.A. No.4176 of 2010 before trial commences, as recording of evidence on that application has started. That will avoid inconvenience and embarrassment to both the parties. Hence I am inclined to interfere with Ext.P6, O.P(C) No.2283 of 2011 -: 4 :- order. Resultantly, Original Petition is disposed of as follows: (a) Exhibit P6, order on I.A. No.4176 of 2010 is set aside and I.A. No.1883 of 2011 in O.S. No.807 of 2009 is allowed. (b) Learned Sub Judge shall if the plan (allegedly) prepared by the third respondent is not available or traceable for whatever be the reason thereof, dispose of I.A. No.4176 of 2010 as provided under law after completing the enquiry already embarked upon on that application. THOMAS P. JOSEPH, JUDGE. vsv