IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 8345 of 2010(O) --------------------------------- O.S. 602/2009 OF MUNSIFF'S COURT, ERNAKULAM. ......... PETITIONER(S): ------------------------ 1. FRANCIS, AGED 78, S/O.AUGUSTY, PANDARAPARAMBIL HOUSE, PIZHALA, KADAMAKKUTY VILLAGE, KANAYANNUR TALUK. 2. PHILOMINA FRANCIS @ THANKAMMA, W/O.FRANCIS, PANDARAPARAMBIL HOUSE, PIZHALA, KADAMAKKUTY VILLAGE, KANAYANNUR TALUK. 3. GABRIEL @ WILLIAMS, S/O.FRANCIS, PANDARAPARAMBIL HOUSE, PIZHALA, KADAMAKKUTY VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): ------------------------- 1. KADAMAKKUDY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, PIZHALA P.O. PIN:682 027. 2. AUGUSTINE, S/O.SEBASTIAN, KOLLAMASSERY HOUSE, PIZHALA, KADAMAKKUDY. R1 BY ADV. SRI.K.M.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.8345/2010 APPENDIX PETITIONER'S EXHIBITS P1:_ COPY OF THE JUDGMENT IN WPC. 2122/09 OF THIS HONOURABLE COURT DTD. 23.1.09. P2:- COPY OF THE PLAINT IN OS. 602/09 DTD. 3.6.09 OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM. P3:- COPY OF THE COMMISSION REPORT IN IA. 3637/09 IN OS. 602/09 DT. 12.6.09. P4:- COPY OF THE SKETCH ATT6ACHED OT EXT.P3. P5:- COPY OF THE APPEAL MEMORANDUM IN CMA. 81/09 OF DISTRICT COURT, ERNAKULAM DTD. 3.8.09. P6:- COPY OF THE IA. 932/2010 IN OS. 602/09 DT. 4.2.2010. P7:- COPY OF THE PANEL OF SURVEYORS FILED BY THE PETITIONERS ON 16.2.2010. P8:- COPY OF THE ORDER IN OS. 602/09 DTD. 11.3.09. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J --------------------------- W.P.(C).No.8345 OF 2010 ----------------------------------- Dated this the 18th day of March, 2010 J U D G M E N T This is a petition filed under Article 227 of the Constitution of India challenging Ex.P8 order passed by the Munsiiff Court, Ernakulam. 2. The petitioner had instituted O.S.602/09 before the Principal Munsiff Court, Ernakulam seeking a decree of permanent prohibitory injunction, restraining the respondents from interfering with the right, title, interest and possession over plaint schedule property. Copy of the plaint is produced and marked as Ext.P2. Along with the suit, I.A.3636/09 was also filed seeking interim injunction. Exparte injunction was also granted. It is stated that a commission was already taken for getting a detailed report. Copy of the report marked as Ext.P3 and sketch is produced and marked as Ext.P4. 3. The respondents entered appearance and filed objection to the injunction application, which was heard in detail by the court below and order was confirmed. C.M.A.81/09 filed by W.P.(c) No.8345/10 2 the 2nd respondent is pending. 4. It is stated that the defendants raised preliminary issue regarding maintainability of the suit that was answered in favour of the plaintiff. On 4.2.2010 the petitioner filed I.A.932/10 for appointment of an Advocate Commissioner with the Assistance of a Taluk Surveyor in order to ascertain whether there is any puramboke land in the property. Copy of the same is produced and marked as Ext.P6. Petition was posted to 10.2.2010. As directed by the court, the petitioners filed a panel of surveyors on 16.2.2010. After several postings the case was posted to 11.3.2010. On 11.3.2010 the case was taken up and Ext.P8 order dismissing the suit was passed. The said order is challenged. 5. The learned counsel appearing for the petitioner pointed out that the court below was not justified in dismissing the suit. Steps were being taken for complying with the order on commission application and if at all any default has occurred in taking steps on the Commission application, only the commission application could have been dismissed. It is therefore contended that the order is sustainable in law. 6. The learned counsel appearing for the first respondent has stated that remedy is to seek restoration of suit. W.P.(c) No.8345/10 3 7. Ext.P8 is clearly unsustainable in law. One fails to understand that on a day on which I.A was posted for taking steps, how on failure to take steps, the suit could have been dismissed. Coming to the worst only, I.A could have been dismissed. In the result, the petition is allowed. Impugned order is set aside and the suit will stand restored to file. P. BHAVADASAN, JUDGE. Sou.