IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 OP(C).NO. 2208 OF 2011(O) --------------------------------------- AGAINST THE ORDER IN IA.535/2011 IN AS.14/2011 OF ADDITIONAL .SUB COURT, IRINJALAKUDA .................... PETITIONERS: -------------------- 1. GOPI, AGED 62, S/O. KANDENGATTIL VELAPPAKUTTY, PAZHAYI DESOM, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK. 2. SUNILDAS, S/O. KANDENGATTIL VELAPPUKUTTY, PAZHAYI DESOM, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): -------------------------- 1. PRABHOSH, S/O. MANAKATTUPADY PRABHAKARAN, PAZHAYI DESOM, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK - 680 301. 2. DEEPA, W/O. MANAKATTUPADY PRABHOSH, PAZHAYI DESOM, NENMANIKKARA VILLAGE, MUKUNDAPURAM TALUK - 680 301 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2208 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN O.S. NO.985 OF 2005 DATED 31.1.2011 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA. EXHIBIT P2 A TRUE COPY OF THE APPLICATION I.A. NO.535 OF 2011 IN A.S. NO.14 OF 2011 ON THE FILE OF THE ADDITIONAL SUB COURT, IRINJALAKUDA DATED 2.2.2011. EXHIBIT P3 A TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE RESPONDENTS 1 AND 2 IN EXT.P2 APPLICATION DATED 14.3.2011. EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED IN I.A. NO.535 OF 2011 IN A.S. NO.14 OF 2011 DATED 2.4.2011 ON THE FILE OF THE ADDITIONAL SUB COURT, IRINJALAKUDA. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2208 of 2011 -------------------------------------- Dated this the 12th day of July, 2011. JUDGMENT Plaintiffs in O.S.No.985 of 2005 of the court of learned Principal Munsiff, Irinjalakuda and appellants in A.S.No.14 of 2011 of the court of learned Additional Sub Judge, Irinjalakuda are the petitioners before me challenging the order passed by learned Additional Sub Judge on I.A.No.535 of 2011 in the appeal. Petitioners sued respondents for recovery of possession of plaint B schedule on the strength of title, prohibitory injunction and other reliefs. Learned Principal Munsiff dismissed the suit on the ground that petitioners did not measure plaint A schedule with reference to Exts.A1 to A4. The judgment and decree are challenged in A.S.No.14 of 2011. During pendency of the appeal petitioners filed I.A.No.535 of 2011 to depute an Advocate Commissioner to measure the property with the assistance of a Surveyor. That application was dismissed by the learned Additional Sub Judge vide the impugned order. The said order is under challenge. Learned counsel submits that petitioners may be given an opportunity to cure the defect in not taking out a survey commission as observed by the learned Munsiff in the judgment under challenge in the appeal. 2. The application for adducing further evidence (be it in the nature of a report and plan prepared by the Advocate Commissioner) should have been heard and disposed of along with the appeal itself as held by various authorities, OP(C) No.2208/2011 2 one of the latest being Malayalam Plantations Ltd. v. State of Kerala (2010 (4) KLT 647-paragraph 11). Now that petitioner has invited a decision on the application during pendency of appeal itself, I do not find any merit in setting aside the order and directing learned Additional Sub Judge to consider the application again at the time of disposal of appeal. What is required is to observe that in case a Second Appeal is preferred against the judgment and decree of learned Additional Sub Judge in A.S.No.14 of 2011, it is open to the petitioners to challenge correctness of the order dismissing I.A.No.535 of 2011. 3. Learned counsel requested that notwithstanding the impugned order petitioners may be permitted to request for a remand of the case when A.S.No.14 of 2011 is being heard by learned Additional Sub Judge. If petitioners are entitled to that course needless to say that it is open to them to make such a request to the learned Additional Sub Judge notwithstanding the dismissal of I.A.No.535 of 2011. With the above observation this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks