IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 OP(C).No. 1261 of 2010(O) ------------------------- OS.110/2010 of MUNSIFF COURT, VAIKOM .................... PETITIONER: ----------------------- KUNJANNAMMA,W/O.JOSEPH, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKOM TALUK. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): --------------------------- 1. SANTHOSH, S/O.MADHAVAN,CHANDAZHATHU HOUSE,THALAYOLAPARAMBU KARA,VADAYAR VILLAGE, VAIKOM TALUK. 2. MAHILAMANY,D/O.KALYANI,BIJU NIVAS, VADAKKUM BHAGOM MURI, VADAYAR VILLAGE,VAIKOM TALUK. 3. BIJU,S/O.ASOKAN,BIJU NIVAS, VADAKKUM BHAGOM MURI,VADAYAR VILLAGE, VAIKOM TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.1261 of 2010 ==================================== Dated this the 21st day of December, 2010 J U D G M E N T Exhibit P5, order dated December 3, 2010 on I.A. No.1734 of 2010 in O.S. No.110 of 2010 of the court of leaned Munsiff, Vaikom is under challenge in this petition at the instance of defendant No.1. That a is suit filed by the respondents against petitioner and others for a decree for prohibitory injunction against trespassing into plaint schedule item No.3 described as a way or interfering with enjoyment of the said way by respondents by closing the gate. Petitioner and other defendants filed written statement denying the right claimed by respondents. They disputed claim of respondents over item Nos.1 and 2 of plaint schedule as per documents of title referred to therein. In the course of the suit, two reports were obtained through Advocate Commissioner. Once the suit was dismissed for default, later restored to file and again listed for trial in November, 2010. It is at that time respondents filed I.A. No.1734 of 2010 to appoint an Advocate Commissioner to report on the lie of the property with the assistance of Surveyor. That application was resisted by petitioner but it was allowed as per Ext.P5 which is under O.P(C) No.1261 of 2010 -: 2 :- challenge. Learned counsel for petitioner contends that attempt of respondents is only to protract and delay trial of the suit while the way exclusively belonging to the petitioner is being enjoyed by the respondents under cover of the interim order of injunction. Grievance of petitioner is that if a survey commission is allowed it will only protract the proceedings further. It is also contended that there are already two reports on record and it is without setting aside those reports that learned Munsiff has allowed the request for fresh commission. 2. True, there are two reports already on record. But in fairness it is conceded that those reports are not submitted after measurement of property. It is not as if in respect of fresh matters court is powerless to call for a report without setting aside the earlier reports. As per Ext.P3, I.A. No.1734 of 2010 request of respondents is to measure property with reference to the documents of title and survey records. That measurement according to the learned Munsiff, is necessary for disposal of the suit. I also find from paragraph 1 of the plaint that according to the respondents they have right of access through the disputed way as per documents of title in their favour and the relief prayed for by the respondents is that petitioner be restrained from entering into plaint schedule item No.3 over which according to O.P(C) No.1261 of 2010 -: 3 :- the respondents, petitioner has no right. It is in these circumstances that survey commission was found necessary for resolving the dispute involved and it is accordingly that learned Munsiff allowed the application. Having regard to the facts and circumstances of the case I find no reason to interfere with the impugned order. 3. But the apprehension of petitioner is to be addressed. It is seen that suit was dismissed for default when it was posted for trial on 13.07.2010, it was restored to file and again listed for trial in November, 2010 and in the meantime respondent filed Ext.P3, application. Proceedings in the suit cannot be prolonged on the basis of successive applications. Hence learned Munsiff is directed to issue necessary direction to the Advocate Commissioner and Surveyor to submit report and plan as early as possible and ensure that the suit itself is disposed of as expeditiously as possible considering grievance of petitioner. Original petition is disposed of with the above direction. THOMAS P. JOSEPH, JUDGE. vsv