IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 30938 of 2007(G) -------------------------- AGAINST THE ORDER IN IA. 2225 /2007 IN OS.389/2005 of PRL.MUNSIFF'S COURT, KOCHI. .................... PETITIONER: --------------------- BIJU SEBASTIAN, AGED 27 YEARS, S/O. T.P. JOSEPH, THEKKUMPURATHU HOUSE, VATHURUTHY, MATSYAPURI P.O., KOCHI-29, NOW RESIDING AT THEKKUMPURATHU HOUSE, AROOR P.O.,ALAPPUZHA DISTRICT. BY ADV. SMT.R.SUDHA RESPONDENT: ------------------------ V.M. MAMMOOTTY, S/O. MOHAMMED, NIKATHIL HOUSE, VATHURUTHY, KOCHI-29. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30938/2007 G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.389/2005 FILED BY THE PETITIONER BEFORE THE HON'BLE MUNSIFF'S COURT, KOCHI. EXT.P2: COPY OF THE COMMISSION REPORT DTD. 5/09/2005. EXT.P3: COPY OF THE COMMUNICATION ISSUED BY THE VILLAGE OFFICER DTD. 27/02/2007. EXT.P4: COPY OF THE ORDER PASSED BY THE PRINCIPAL MUNSIFF'S COURT, KOCHI IN I.A.NO.2225/2007 IN O.S.NO.389/05 DTD. 25/09/2007. EXT.P5: COPY OF THE I.A.2225/07 IN O.S.389/05, MUNSIFF'S COURT, KOCHI. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 30938 OF 2007 ------------------------------------------ Dated this the 8th day of August, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P4 order passed by Munsiff, Kochi in I.A. 2225 of 2007 in O.S. 389 of 2005. Though notice was served on the respondent he did not appear. 2. Learned counsel appearing for petitioner was heard. 3. The suit is one for recovery of possession and prohibitory injunction. Petitioner is the plaintiff. A commission was appointed. The commissioner submitted Ext.P2 report. Thereafter another commission was appointed. The commissioner submitted Ext.P3 interim report stating that survey stones are not available at the boundaries and therefore assistance of Taluk Surveyor is necessary. Learned Munsiff then passed an order on 28.5.2007. Learned counsel appearing for petitioner submitted that as requested by the commissioner, instead of Taluk Surveyor, Court directed assistance of a private surveyor and later on 28.5.2007 directed petitioner to intimate WP(C)30938/07 2 the Surveyor and also to produce necessary documents required for identifying the property. Later on 30.6.2007 as petitioner failed to comply with the direction the petition was closed. Petitioner filed I.A.2225 of 2007 to review the said order. A copy of I.A.2225 of 2007 was produced by petitioner as Ext.P5. Ext.P5 shows that in his affidavit petitioner stated that as survey stones were not found available to identify property, petitioner was searching for records and while so, Court directed petitioner to produce survey records and petitioner approached the Surveyor, but could not get the documents and therefore documents could not be produced. It was contended that when the case was called on 31.7.2007 his counsel could not represent and therefore Court closed the commission application and hence the order is to be reviewed. Learned Munsiff, under Ext.P4 order, dismissed the application finding that inspite of direction petitioner did not produce the records to enable the commissioner to identify the property and did not even take the commissioner even once to the property. This petition is filed challenging that order. 4. Learned counsel argued that the petitioner was trying to get the survey records to enable identification of the property WP(C)30938/07 3 and learned Munsiff should have reviewed the earlier order and proper identification is absolutely necessary to resolve the dispute involved in the suit. 5. Being a suit for recovery of possession and prohibitory injunction, identification of the property is a must. It is on satisfying that there should be proper identification, learned Munsiff to appoint a commission. It is also true that the property cannot be identified without producing the relevant records. Learned Munsiff was compelled to close the commission application on the failure of the petitioner to produce the records. Even when Ext.P4 order was passed, petitioner did not produce the relevant records before the learned Munsiff. In such circumstances it cannot be said that Ext.P4 order is illegal. But considering the fact that a report and plan are necessary for resolving the disputes involved in the suit, an opportunity is granted to the petitioner to make available the relevant records to the Court so that commissioner could be directed to identify the property. Though learned counsel appearing for petitioner argued that Taluk Surveyor should be appointed, as petitioner did not challenge the order passed by learned Munsiff appointing a private Surveyor inspite of a Taluk Surveyor, WP(C)30938/07 4 petitioner is not entitled to seek such a direction in this petition where Ext.P4 order alone is challenged. The learned Munsiff is therefore directed to restore the commission application and to give necessary instructions to the commissioner to identify the property, if petitioner makes available the relevant documents within three weeks from today, failing which learned Munsiff to proceed with the trial. M. SASIDHARAN NAMBIAR, JUDGE Okb/-