IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 36795 of 2008(E) --------------------------------------------- IA.8685/2008 IN OS.306/2007 of II ADDL.M.C., ERNAKULAM .................... PETITIONER: N.P.SUBHASHINI, AGED 62 YEARS, W/O.LAE RAMESAN, KEEZHATH HOUSE, EROOR SOUTH P.O., THRIPUNITHURA. BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENTS: 1. K.V.SATHYAN, AGED 50 YEARS, S/O. VENKUTTY, KONTYAMATTATH, KANIYAMPUZHA, VYTILA. 2. K.V.RAMESAN, AGED 47 YEARS, S/O. VENKUTTY, KONTYAMATTATH, KANIYAMPUZHA, VYTILA. 3. K.V.ANIL KUMAR, AGED 48 YEARS, S/O.VENKUTTY, KONTYAMATTATH, KANIYAMPUZHA, VYTILA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.36795 of 2008 E -------------------------- JUDGMENT This writ petition is filed by the plaintiff in O.S.No.306/07 on the file of the Munsiff's Court, Ernakulam. She filed I.A.No.8685/08 in the said suit when the suit was listed for trial and vide Exhibit P3 order dated 21.11.2008, the trial court dismissed the application and hence this writ petition. 2. It is submitted by the counsel for the petitioner that the suit stood posted for trial in the list to this day and that it is adjourned to 19.12.2008 on the submission made in the court below that the petitioner/plaintiff has filed this writ petition and that it is pending consideration by this Court. 3. The prayer in the application for issuance of a commission is to measure out the plaint schedule property on the basis of resurvey records WPC 36795/08 2 with the assistance of Taluk Surveyor. The suit is one for injunction. There is no need to measure the plaint schedule property and to fix the boundaries in a suit for prohibitory injunction simplicitor. It is submitted that there is already a commission report filed as early as on 21.3.2007 on the application of the petitioner herself. It is also submitted that necessity for issuance of a commission is for reason of the earlier Commissioner having not located the western boundary of the scheduled property. If at all the petitioner wanted any clarification, she should have asked for the commission report being remitted to the same Commissioner. That was not done. Further, if at all the petitioner/plaintiff wanted a commission for surveying the property and locating its boundaries with the intention to amend the plaint subsequently, then also, she should not have slept over her rights after submission of the commissioner's report on 21.3.2007. The court WPC 36795/08 3 below observed that without setting aside the earlier commission report, a fresh commission cannot be allowed and further that in the plaint, in the basic tax receipt, etc., only the survey number of the property is mentioned, with no record to show the re-survey number in relation to the scheduled property. To crown all that, is the inaction on the part of the petitioner/plaintiff to file an application sufficiently early. Inasmuch as the application has been filed when the suit is posted for trial in the list to this day, I have no difficulty to conclude that Exhibit P2 application for issuance of a commission with the assistance of a Taluk Surveyor was filed only with a view to see that trial of the case is protracted with some ulterior motives. It is also to be noted that carbon copy of the order was issued on 6.12.2008, but this writ petition is filed only on 12.12.2008. The order of the court below disallowing the application for issuance of a commission to measure WPC 36795/08 4 out the properties on the basis of resurvey, for the first time when the suit has come up in the list has only to be upheld and this writ petition dismissed. In the result, I dismiss this writ petition. 16th December, 2008 (K.P.Balachandran, Judge) tkv