IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 28675 of 2008(L) -------------------------- AS.60/2006 of PRINCIPAL SUB COURT,ALAPPUZHA OS.49/2004 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER(S): --------------- NAFEEM BEEVI, W/O. NAVAS, AGED 29 YEARS, PUNNACKAL NIVAS, VELLAKKINAR WARD, ALAPPUZHA MURI, ALAPPUZHA WEST VILLAGE, ALLAPPUZHA DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): --------------- 1. ABDUL RAHMAN YAFFI S/O. ABDULLA YAFFI, NAZAR MANZIL, AIYROOR P.O.VARKALA, THIRUVANANTHAPURAM. 2. JAMEELA W/O. ABDUL RAHMAN YAFFI, NAZAR MANZIL, AIYROOR P.O., VARKALA, THIRUVANANTHAPURAM. 3. NAZEEB S/O. ABDUL RAHMAN YAFFI, NAZAR MANZIL, AIYROOR P.O., VARKALA, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P.(C ) No. 28675 of 2008 * * * * * * * * * * * * * * * * * * Dated: 30-09-2008 JUDGMENT Petitioner in a suit for injunction filed as O.S. No. 49 of 2004 on the file of the Principal Munsiff's Court, Alappuzha, challenges Ext.P3 order dated 8-8-2008 passed by the Sub Court, Alappuzha in I.A. No. 1531 of 2008 in A.S. 60 of 2006. 2. As mentioned earlier the suit was one for injunction simplicitor. The main defence raised by the defendants was that the plaintiff's property was not identified. In spite of that the petitioner/plaintiff did not think it necessary to take out a commission for the purpose of identifying the plaint schedule property. The said suit was accordingly dismissed as per Ext.P1 judgment and decree dated 18-10-2006 holding inter alia that the plaintiff had failed to prove the identity of the property. Aggrieved W.P.C. No. 28675 of 2008 -:2:- by the decree he has filed an appeal as A.S. 60 of 2006 before the Sub Court, Alappuzha. Two years after the filing of the appeal, he filed I.A. 1561 of 2008 seeking to appoint an Advocate Commission for the purpose of identifying the plaint schedule property. The said application has been dismissed as belated. I do not find any good ground to interfere with the order passed by the appellate court. 3. This was pre-eminently a fit case where the plaintiff was to lose on account of the formal defect of not getting the property identified. He could have sought a withdrawal of the suit with liberty to institute a fresh suit. I, therefore, dismiss this petition with liberty to the petitioner to file an appropriate petition before the appellate court under Order 23 Rule 3 C.P.C. This Writ Petition is disposed of as above. Dated this the 30th September 2008. V. RAMKUMAR, (JUDGE) ani. W.P.C. No. 28675 of 2008 -:3:-