IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 OP(C).No. 3570 of 2011(O) ------------------------ O.S. NO. 297/2007 OF MUNSIFF COURT, THRISSUR ................. PETITIONER'S : ----------------------- 1. CHAKKU, S/O.OUSEPH @ KOCHAPPU, NEELANKAVIL HOUSE, THRISSUR DESOM, KILLANNOOR VILLAGE, THRISSUR. 2. THOMAS, S/O.DO. RESIDING IN -DO- -DO- BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN RESPONDENT(S): -------------------------- 1. ST.THOMAS CHURCH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK, REPRESENTED BY PRESENT VIKARI JOSEPH CHAZHUR, PIN 680 010. 2. ST.THOMAS CHURCH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK, REPRESENTED BY PRESENT KAIKKARAN GEORGE, S/O.MUTTIKKAL LUKOSE, IN -DO- -DO-, PIN 680 010. 3. ST.THOMAS CHURCH, KOLAZHI VILLAGE, THIROOR DESOM, THRISSUR TALUK, REPRESENTED BY PRESENT KAIKKARAN XAVIER, S/O.CHITTILAPPILLY VEETTIL KOCHU MATHEW PUTHANMADAM DESOM, KOLAZHI VILLAGE, PIN 680 010. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 3570 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1. DATED 12.1.2007, TRUE COPY OF THE PLAINT IN O.S NO. 297 OF 2007, PRINCIPAL MUNSIFFS COURT, THRISSUR. EXHIBIT P2. DATED 4.6.2011, TRUE COPY OF THE LETTER SENT BY THE ADVOCATE COMMISSIONER TO THE SURVEYOR. EXHIBIT P3. DATED 17.8.201, TRUE COPY OF I.A NO.7827 OF 2011 IN I.A NO.9793 OF 2009 O.S NO.297 OF 2007, MUNSIFFS COURT, THRISSUR. EXHIBIT P4. DATED NIL, TRUE COPY OF THE OBJECTION TO I.A NO.7827 OF 2011 IN O.S NO.297 OF 2007, MUNSIFFS COURT, THRISSUR. EXHIBIT P5. DATED 3.10.2011, TRUE COPY OF ORDER IN I.A NO.7827 OF 2011 IN I.A NO. 9793 OF 2009 O.S NO.297 OF 2007, MUNSIFFS COURT, THRISSUR. EXHIBIT P6. DATED 22.9.2009, TRUE COPY OF ORDER IN I.A NO. 3537 OF 2009 IN O.S NO.4021 OF 2005 PRINCIPAL MUNSIFFS COURT, THRISSUR. EXHIBIT P7. DATED 22.10.2009, TRUE COPY OF THE JUDGMENT IN W.P(C) NO.29970 OF 2009 OF THIS HONOURABLE COURT. EXHIBIT P8. DATED 29.9.2011 TRUE COPY OF THE LETTER SENT BY THE ADVOCATE COMMISSIONER TO THE SURVEYOR. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3570 of 2011 ==================================== Dated this the 03rd day of November, 2011 J U D G M E N T Plaintiffs in O.S. No.297 of 2007 of the court of learned Munsiff, Thrissur are the petitioners before me aggrieved by the order dated 03.10.2011 refusing to replace the Surveyor as requested by petitioners. 2. In a suit for injunction obviously in view of the contentions raised by the respondents a survey commission was appointed. According to the petitioners, the Surveyor did not turn up for two years and in the circumstances they were constrained to file I.A. No.7827 of 2011 requesting to replace the Surveyor. Learned Munsiff made certain observations against petitioners in the impugned order and refused to replace the Surveyor. Learned counsel for petitioners contends that there was no such objection even for the respondents as per Ext.P4, objection and that it is not clear how the learned Munsiff came to the conclusion that petitioners did not co-operate with the Surveyor. Learned counsel also invited my attention to Ext.P2 and P8, letters dated 04.06.2011 and 29.09.2011 issued by the Advocate Commissioner O.P(C) No.3570 of 2011 -: 2 :- asking the Surveyor to complete his work by the dates mentioned in the said letters. It is submitted by learned counsel that the Advocate Commissioner also had no grievance against conduct of petitioners in the matter. 3. Learned Munsiff referred to the judgment of this Court in W.P(C) No.29970 of 2009 to hold that replacing of Surveyor is not possible. In Ext.P2, letter dated 04.06.2011 the Advocate Commissioner has asked the Surveyor to complete the work immediately, latest by 15.06.2011 and that Advocate Commissioner is giving notice to the Advocates for parties fixing time for survey as 15.06.2011 at 10.30 a.m. In Ext.P8, letter dated 29.09.2011 the Commissioner has directed the Surveyor to complete his work latest by 07.11.2011. 4. It is not disputed that survey commission was appointed sometime back. The suit is of the year, 2007. If the Surveyor is not co-operating with the Advocate Commissioner in carrying out his work, necessarily it is within the power of learned Munsiff to consider whether the Surveyor could be replaced by another Surveyor so that the work could be completed without further delay. 5. Presently I find no reason to interfere with Ext.P5, O.P(C) No.3570 of 2011 -: 3 :- order. But I make it clear that this order will not stand in the way of learned Munsiff considering the request of petitioners in future to replace the Surveyor in case the latter is found to be not co- operating with the Advocate Commissioner in carrying out the work. If any such situation arises it is open to the learned Munsiff to obtain a report from the Advocate Commissioner to ascertain whether the Surveyor is co-operating with the Advocate Commissioner in carrying out the work. In the meantime parties also shall render all assistance to the Advocate Commissioner and Surveyor in discharging their duties. Original Petition is closed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv