IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 OP(C).No. 3737 of 2011(O) ------------------------------------- [OS.NO.213/2008 OF PRINCIPAL SUB COURT,THIRUVANANTHAPURAM] .................... PETITIONER: ------------------- THE CATHOLIC SYRIAN BANK LTD., REPRESENTED BY ITS CHIEF MANAGER, THIRUVANANTHAPURAM MAIN BRANCH, UNIVERSITY CAMPUS P.O, THIRUVANANTHAPURAM. BY ADV. SRI.C.A.JOY. RESPONDENT: ---------------------- NEERAJ KISHORE, AGED 22 YEARS, S/O.RAMACHANDRAN,STUDENT,VARDA,TC5/2000,KOWDIAR WARD,PEROORKADA VILLAGE,THIRUVANANTHAPURAM,REPRESENTED BY HIS POWER OF ATTORNEY, VIJAYA MOHANDAS, S/O.RAMAKRISHNA PILLAI,TC.64/2355, NEELAMBARI,THIRUVALLOM VILLAGE, THIRUVALLOM, THIRUVANANTHAPURAM- 695 001. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3737/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1. A TRUE COPY OF PLAINT IN OS NO.213/2008, PRINCIPAL SUB COURT ERNAKULAM. EXHIBIT P2. A TRUE COPY OF COMMISSION APPLICATION, IA NO.5055/10 FILED BY THE PLAINTIFFS. EXHIBIT P3. A TRUE COPY OF WRITTEN STATEMENT IN O.S NO.213/08. EXHIBIT P4. A TRUE COPY OF DECREE IN O.A NO.950/91 DATED 25.07.92. EXHIBIT P5. A TRUE COPY OF THE DELIVERY KAICHIT IN E.P NO.77/2000 IN O.S NO. 950/91 DATED 11.07.07. EXHIBIT P6. A TRUE COPY OF THE COMMISSION REPORT AND SURVEY PLAN IN O.S NO.950/91 EXHIBIT P7. A TRUE COPY OF THE ORDER IN I.A NO.9034/2009 IN O.S NO. 213/2008 DATED 31.08.2011. EXHIBIT P8. A TRUE COPY OF THE I.A NO.1603/2011 IN O.S NO.213/2008 FILED BY THE DEFENDANT. EXHIBIT P9. A TRUE COPY OF ORDER IN I.A NO.1603/2011 IN O.S NO.213/2008 DATED 31.08.2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3737 of 2011 ==================================== Dated this the day of November, 2011 J U D G M E N T Plaintiffs Defendant in O.S. No.213 of 2008 of the court of learned Principal Sub Judge, Thiruvananthapuram is the petitioner before me challenging Ext.P9, order dated 31.08.2011 whereby request to issue a survey commission for identification of the property claimed by petitioner was disallowed. Learned counsel invited my attention to Ext.P6, report and plan. It is contended that property delivered to the petitioner is abutting the public road but Exts.C1 and C1(a) relied by the court below will not reveal that and in the circumstances a fresh survey commission is required. 2. I am told that the case is coming up for trial in the list on 18.11.2011. It is seen that the impugned order was passed on 31.08.2011, a copy of that order was made ready for delivery on 04.10.2011 and issued to the petitioner on 11.10.2011. This Original Petition is filed only on 16.11.2011, that too, on the previous day of the day fixed to commence trial of the suit. Moreover, learned Sub Judge has observed in Ext.P9, order that if petitioner is dissatisfied with Exts.C1 and C1(a) (marked in the O.P(C) No.3737 of 2011 -: 2 :- court below), petitioner could examine the Advocate Commissioner and point out the illegality if any and if it is found necessary it is open to the court to remit Exts.C1 and C1(a) to the Commissioner to rectify the defects if any. True, learned Sub Judge has also observed that no such defects are pointed out but I am not inclined to think that Ext.P9, order foreclosed right of petitioner to examine the surveyor and/or Advocate Commissioner to show that Exts.C1 and C1(a) are not correct. I must also bear in mind that petitioner is the defendant in the suit who is not seeking any relief in the matter except dismissal of the suit. In the light of the observations made by the learned Sub Judge in Ext.P9, order which I have stated above and as it is open to the petitioner to examine the Surveyor and/or Advocate Commissioner and prove that Exts.C1 and C1(a) are not correct, I do not find reason to interfere in the matter. Without prejudice to that right of petitioner which the learned Sub Judge has referred to in Ext.P9, order, this Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv