IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 26370 of 2010(O) -------------------------- AGAINST THE ORDER DATED 05/07/2010 IN IA 879/2010 IN OS.119/2008 of MUSNIFF COURT,ADOOR .................... PETITIONER(S): --------------- 1. LATHIKAKUMARI C.K., CHERUKALETHU VEEDU, MUTTOM MURI, KURAMPALA VILLAGE, ADOOR TALUK. 2. GEETHAKUMARI C.K., CHERUKALETHU VEEDU, MUTTOM MURI, KURAMPALA VILLAGE, ADOOR TALUK. 3. GIRIJAKUMARI C.K., CHERUKALETHU VEEDU, MUTTOM MURI, KURAMPALA VILLAGE,ADOOR TALUK. BY ADV. SRI.JACOB P.ALEX RESPONDENT(S): --------------- GEETHA W/O. AJITH, KALABHAVAN, NARIYAPURAM MURI, VALLIKKODU VILLAGE, KOZHENCHERY TALUK-689645. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.26370/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 119/2008 BEFORE THE MUNSIFF COURT, ADOOR EXT.P2 TRUE COPY OF WRITTEN STATEMENT IN OS 119/2008 BEFORE THE MUNSIFF COURT, ADOOR EXT.P3 TRUE COPY OF IA NO.879/2010 IN OS 119/2008 BEFORE THE MUNSIFF COURT, ADOOR EXT.P4 TRUE COPY OF ORDER DATED 5.7.2010 IN IA 879/2010 IN OS 119/2008 BEFORE THE MUNSIFF COURT, ADOOR //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.26370 of 2010 -------------------------------------- Dated this the 27th day of September, 2010. JUDGMENT Respondent is served but there is no response. 2. This petition is in challenge of Ext.P4, order dated 05.07.2010 on I.A.No.879 of 2010 in O.S.No.119 of 2008 of the court of learned Munsiff, Adoor dismissing the application for appointment of an Advocate Commissioner to inspect the properties and fix boundaries with the assistance of a Surveyor. Learned counsel for petitioners contend that without a survey commission and fixation of boundaries the suit could not proceed further. 3. Petitioners filed the suit for fixation of boundaries between item Nos.1 and 2 and filed I.A.No.879 of 2010 for appointment of an Advocate Commissioner as above stated. Learned Munsiff dismissed the application stating that issues were framed on 22.01.2010 and inspite of repeated postings for taking pre-trial steps, petitioners had not taken steps. Application was dismissed for the reason of delay. Learned counsel states that after issues were framed there was only one posting and immediately thereafter I.A.No.879 of 2010 for appointment of commission is filed. WP(C) No.26370/2010 2 4. Since the suit is for fixation of boundaries necessarily the properties are to be identified and boundaries are to be fixed. I am not persuaded to think that there was contumacious negligence or delay on the part of petitioners which disentitled them from getting the assistance of an Advocate Commissioner. Having regard to the facts and circumstances I am inclined to think that learned Munsiff ought to have allowed the application. Resultantly this Writ Petition is allowed in the following lines: i. Ext.P4, order dismissing I.A.No.879 of 2010 (in O.S.No.119 of 2008 of the court of learned Munsiff, Adoor) is set aside and that application will stand allowed. ii. Learned Munsiff shall appoint an Advocate Commissioner to identify the properties as requested for in I.A.No.879 of 2010 with the assistance of a Surveyor. iii. It is made clear that if respondent has any work memo to be filed, she could file such work memo in the court below and the learned Munsiff shall pass appropriate orders on such work memo. WP(C) No.26370/2010 3 iv. Batta payable to the Advocate Commissioner and Surveyor shall be fixed by the learned Munsiff taking into account extent of work to be done and other relevant matters. THOMAS P.JOSEPH, Judge. cks