IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 OP(C).No. 811 of 2010(O) ------------------------ AGAINST THE ORDER IN IA 5032/2010 IN OS.915/2008 of PRINCIPAL MUNSIFF COURT,, KOLLAM .................... PETITIONERS ------------------------------- 1. CHANDRASEKHARAN PILLAI, S/O.VELU PILLAI, RESIDING AT USHALAYAM, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM DISTRICT. 2. USHA CHANDRASEKHARAN PILLAI, USHALAYAM, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): --------------- 1. MURALEEDHARAN PILLAI, THAVOOTTUTHAZHATHIL VEEDU, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM-691 601. 2. MOHANAN PILLAI, S/O. CHELLAPPAN PILLAI, TAVOOTTU VEEDU, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM-691 601. 3. USHA MOHAN, W/O. MOHANAN PILLAI, TAVOOTTU VEEDU, MURUNTHAL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM-691 601. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.811 of 2010 -------------------------------------- Dated this the 22nd day of November, 2010. JUDGMENT Plaintiffs in O.S.No.915 of 2008 of the court of learned Principal Munsiff, Kollam are the petitioners before me challenging Ext.P4, order dated November 9, 2010 dismissing I .A.No.5032 of 2010. That is a suit filed by petitioner for a decree for prohibitory injunction and other reliefs. Advocate Commissioner conducted a local inspection and submitted a report. The case was published in the list for trial in the first week of October, 2010. In October, 2010 petitioner filed I.A.No.1534 of 2010 to set aside the report. Petitioners wanted to examine the Advocate Commissioner and the Advocate Commissioner was present in the court. But, he was not examined. Later, court permitted examination of Advocate Commissioner on payment of cost of Rs.750/- to the Advocate Commissioner. That direction was not complied by petitioners and on 06.10.2010 I.A.No.1534 of 2010 was dismissed for default. Petitioners filed Ext.P2, I.A.No.5032 of 2010 to set aside dismissal of I.A.No.1534 of 2010. That application was dismissed by Ext.P4, order stating that the case is in the list, evidence of petitioners is already closed and that I.A.No.1534 of 2010 was dismissed on 06.10.2010 and the list was published in the first week of October. Learned Munsiff also observed that there was serious laches on the part of petitioners. Learned counsel submits that it is incorrect to say that Ext.P2, application was preferred only after the case was included in the list. OP(C) No.811/2010 2 2. Assuming so, suit is of the year 2008 and the application to set aside the report was filed only in 2010. May be, petitioners have their own explanation for that. It is seen that opportunity was given to the petitioners to examine the Advocate Commissioner as per order on I.A.No.1534 of 2010 but that was not availed and even the cost ordered was not paid. The application ultimately was dismissed for default. At this stage I do not find reason to interfere with the order under challenge. But the court has only refused examination of the Advocate Commissioner on I.A.No.1534 of 2010 which was to set aside the report. It is open to the petitioners to request learned Munsiff to permit examination of the Advocate Commissioner if such a course is found necessary and permissible, as their witness in the suit. I also make it clear that it will be open to the petitioners to challenge correctness of orders on I.A.Nos.1534 of 2010 and 5032 of 2010 in case an appeal is preferred against the judgment and decree that may be passed in the suit. This petition is closed with the above observation. THOMAS P.JOSEPH, Judge. cks