IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 10194 of 2010(O) -------------------------- AGAINST THE ORDER DATED 15/03/2010 IN IA 1043/2010 IN OS.519/2009 of ADDL.MUNSIFF COURT-II,KOZHIKODE .................... PETITIONER(S): --------------- VENNAT UNNIATHAMMA, W/O.NARAYANAN NAIR, EDAKKANDIYIL HOUSE, THAZHECODE AMSOM, KACHERI DESOM, KOZHIKODE TALUK AND DISTRICT. BY ADV. SMT.T.RESMI DAMODARAN SRI.P.P.RAJEEV LAXMAN RESPONDENT(S): --------------- 1. SUBRAMANIAN, S/O.ANDI, VAYANA HOUSE, P.O.MUKKOM, THAZHECODE AMSOM, KACHERI DESOM, KOZHIKODE TALUK AND DISTRICT. 2. ANANDAN, S/O.UNNIKORAN, KINARULLAKANDIYIL, P.O.MUKKOM, THAZHECODE AMSOM, KACHERI DESOM, KOZHIKODE TALUK AND DISTRICT. 3. BAPPUTTY, S/O.NAGAM, KINARULLAKANDIYIL, P.O.MUKKOM, THAZHECODE AMSOM, KACHERI DESOM, KOZHIKODE TALUK AND DISTRICT. 4. BHASKARAN, S/LO.DEVAKI AMMA, KARUNANGAT, P.O.MUKKOM, THAZHECODE AMSOM, KACHERI DESOM, KOZHIKODE TALUK AND DISTRICT. ADV. SRI.SRINATH GIRISH FOR R1 TO R4 SRI.E.NARAYANAN FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.10194/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT DATED 16.6.2009 EXT.P2 TRUE COPY OF ADVOCATE COMMISSION REPORT AND PLAN DATED 18.6.2009 EXT.P3 TRUE COPY OF IA NO.1043/2010 DATED 1.3.2010 EXT.P4 TRUE COPY OF THE ORDER DATED 15.3.2010 IN IA NO.1043/2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.10194 of 2010 -------------------------------------- Dated this the 7th day of June, 2010. JUDGMENT Plaintiff in O.S.No.519 of 2009 of the court of learned Additional Munsiff- II, Kozhikode challenges Ext.P4, order dated 15.03.2010 on I.A.No.1043 of 2010 refusing to remit report of Advocate Commissioner for the reason of delay in presentation of the application. Petitioner/plaintiff filed the suit for a decree for prohibitory injunction. Along with the suit there was an application for temporary injunction. The Advocate Commissioner submitted a report stating that he could not identify the suit property. In view of that report learned Munsiff dismissed the application for temporary injunction. That has been confirmed by the appellate court in C.M.A.No.68 of 2009. Appellate court directed disposal of the suit on or before 17.05.2010. On 01.03.2010 petitioner filed I.A.No.1043 of 2010 to remit the report and plan of Advocate Commissioner and call for a fresh report and plan so that the property could be identified. It is seen from Ext.P4, order that the application was dismissed for the reason of delay in filing that application and as there was a direction issued by the appellate court for disposal of the suit before 17.05.2010. Learned counsel for petitioner contends that identification of the suit property is necessary for a just and proper adjudication of the controversy involved in the suit and with the report on record, there is no purpose in proceeding with the trial of the suit. Learned counsel for respondents would contend that the application is highly belated and the fact that WP(C) No.10194/2010 2 Advocate Commissioner had failed to identify the suit property was known to the petitioner even from the report submitted much earlier and hence belated application cannot be entertained. 2. The only reason for disallowing I.A.No.1043 of 2010 is delay. True, there was a direction by the appellate court to dispose of the suit before 17.05.2010 and the application (I.A.No.1043 of 2010) was preferred only on 01.03.2010. But a proper identification of the suit property is necessary for deciding the controversy involved in the suit. In that situation notwithstanding that there was some delay on the part of petitioner I am of the view that it is just and proper to allow the application. Resultantly this Writ Petition is allowed. Ext.P5, order dated 15.03.2010 on I.A.No.1043 of 2010 is set aside and that application will stand allowed. Report and plan submitted by the Advocate Commissioner shall be remitted to the Commissioner for further inspection and report as prayed for. Learned Munsiff may fix the additional bata if any payable to the Commissioner and Surveyor if any and issue direction to expedite his proceedings. THOMAS P.JOSEPH, Judge. cks