IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 W.P(C).No. 26328 of 2008(H) ------------------------------------ AGAINST THE ORDER IN OS 1098/1994. IN OS.1210/2003 OF II ADDL.M.C., ERNAKULAM ................................... PETITIONER : --------------------- LEELA PURUSHAN, AGED 65, W/O. LATE PURUSHAN, KOZHIPPARAMBY HOUSE, WARD NO.11, MARADU P.O., ERNAKULAM. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.T.A.ABDUL RASHEED RESPONDENT : -------------------------- ALICE GEORGE, AGED 50, W/O. GEORGE, KEERTHIVELLANIPARAMBU HOUSE, MARADU DESOM, MARADU P.O. ADV. SRI.A.BALAGOPALAN SMT.KALA G.NAMBIAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 26328/2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE PHOTOSTAT COPY OF THE ORIGINAL PLAINT IN O.S. NO.1098/1994 ON THE FILEs OF 11 ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P2 : TRUE PHOTOSTAT COPY OF THE AMENDED PLAINT IN O.S.NO.1098/1994 ON THE FILES OF II ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P3 : TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S. NO.1210/2003 ON THE FILES OF MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P4 : TRUE PHOTOSTAT COPY OF THE COMMISSION APPLICATION AS I.A.NO.8005/2005 ON THE FILES OF HONOURABLE MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P5 : TRUE PHTOTSTAT COPY OF THE WORK MEMO BEFORE THE ADVOCATE COMMISSIONER. EXHIBIT P6 : TRUE PHOTOSTAT COPY OF THE I.A.NO.4469/2008 TO SET ASIDE THE COMMISSION REPORT. EXHIBIT P7 : TRUE PHOTOSTAT COPY OF THE I.A.NO.4470/2008 TO ISSUE SUMMONS TO THE ADVOCATE COMMISSIONER AND THE PRIVATE SURVEYOR. EXHIBIT P8 : TRUE PHOTOSTAT COPY OF THE I.A. NO.6490/2008. EXHIBIT P9 : TRUE PHOTOSTAT COPY OF THE I.A.NO.6609/2008 TO REOPEN THE EVIDENCE. EXHIBIT P10 : TRUE PHOTOSTAT COPY OF THE ORDER DATED 19/08/2008 IN I.A. NO.6609/2008 IN O.S. NO.1098/1994 ON THE FILES OF MUNSIFF'S COURT, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE scm THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 26328 of 2008 ------------------------------ Dated this the 4th day of November, 2008 JUDGMENT Heard counsel on both sides. 2. Respondent filed O.S. No.1098 of 1994 in the Munsiff's Court, Ernakulam for a decree for prohibitory and mandatory injunction. That suit was dismissed. Matter was taken in appeal. Appeal was allowed and case was remitted to the trial court permitting the respondent to amend the plaint and incorporate the relief of recovery of possession. Exhibit P2 is the amended plaint. Pursuant to the amendment, Advocate Commissioner was appointed to inspect the schedule property. Commissioner filed report. That report was set aside. There was Exhibit P4 application to appoint another commissioner and to get report and plan. Advocate Commissioner submitted report and plan. Thereafter petitioner filed Exhibit P6 application to set aside that report. There was also an application to summon the Advocate Commissioner and the surveyor to record oral evidence. Case was posted on 11/08/2008. That day, commissioner W.P(c) No. 26328/2008 2 was examined in part as DW3. According to the petitioner the case was posted for further examination of DW3 on 12-08-2008, rejecting the request of the counsel to adjourn the case to another day since 12-08-2008 was inconvenient to the counsel who was to further cross-examine DW3. On 12-08-2008 there was Exhibit P8, application from the petitioner to adjourn the case to another day. Learned munsiff dismissed that application and recorded that petitioner's evidence is closed. To review that order, petitioner filed Exhibit P9, application which resulted in Exhibit P10, order dated 19-08-2008. That order is challenged in this proceeding. Counsel for petitioner stated that what remained in the suit is only to complete the examination of DW3 and to examine the surveyor. He prayed for an opportunity to further examine DW3 and to examine the surveyor. Counsel for the respondent stated that in case opportunity is given, court below may be directed to dispose of the suit as expeditiously as possible. 3. I do not find any willful default or latches on the part of the petitioner in proceeding with the examination of DW3 on 12-08-2008. In the circumstance, I am inclined to give the petitioner W.P(c) No. 26328/2008 3 an opportunity for further examination of DW3. So far as examination of surveyor is concerned, petitioner has to make a request to the learned munsiff in that behalf. Resultantly, this writ petition is allowed in the following lines: Exhibit P10 order dismissing Exhibit P9 application is set aside. Exhibit P9 will stand allowed and consequently order dated 12/08/2008 rejecting adjournment and closing the evidence of the petitioner will stand set aside. Court below shall give the petitioner an opportunity to further examine DW3. In case request for examination of surveyor is made, court below shall consider that request in the light of facts and circumstance of the case. Court below shall expedite the trial of the case. THOMAS P. JOSEPH, JUDGE scm