IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 34310 of 2008(H) ------------------------------------ OS.250/2002 of MUNSIFF COURT, PARAVUR .................... PETITIONER(S): ----------------------- SUBRAHMANYAN, AGED 68 YEARS, S/O.KUNJIKRISHNAN, MAZHUVANNUPARAMBIL HOUSE, KUZHIKKAD KARA, PUTHENCRUZ VILLAGE, KUNNATHUNAD TALUK. BY ADV. SRI.RAJESH VIJAYAN SRI.T.G.SUNIL (PERUMBAVOOR) RESPONDENT(S): ------------------------- KUMARAN, S/O.KUNJIKRISHNAN, MAZHUVANNUPARAMBIL HOUSE, KUZHIKKAD KARA, PUTHENCRUZ VILLAGE, KUNNATHUNAD TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 34310 of 2008 ---------------------------- Dated this the 20th day of November, 2008 JUDGMENT The petitioner is the first defendant in O.S. No.250 of 2002 on the file of the Munsiff's Court,Perumbavoor. The suit is one for fixation of boundary and for permanent prohibitory injunction. Respondent/ plaintiff filed Exhibit P2 commission application (I.A. No.809 of 2006) in the said suit to measure out the properties and prepare plan and to submit a report ascertaining the various details shown as items 1 to 13 in the commission application. Among the matters to be so ascertained, the first is to measure the A and B schedule properties as per old survey plan and to prepare the sketch of the properties covered by the Partition Deed No.2337 dated 11/06/1991 of Puthencruz S.R.O. It is submitted by the counsel that the commission visited the property on 16/03/2008 and 26/07/2008 and submitted commission report, wherein however the measurement was as per resurvey plan, which did not tally with the lie of the property as per title documents wherein properties were described as per old survey plan. Petitioner therefore, filed Exhibit P3 W.P(c) No. 34310/2008 2 application on 28/07/2008 for a direction being given to the commissioner to measure the properties as per old survey plan as well. Going by the request of the petitioner as well as the respondent, both of them wanted the property to be measured as per the old survey plan. The request so made by the petitioner was however turned down by the court below vide Exhibit P4 order on I.A. No.2061 of 2008 observing that old survey plan is not forwarded as directed and that it is only an attempt to prolong the case and the petition is devoid of merit. It does not appear that the petition is opposed by the respondent/plaintiff. It is also not clear from the order as to who has failed to forward the old survey plan as directed. Counsel for petitioner submits that the petitioner has produced old survey plan in the court below even prior to passing of the impugned Exhibit P4 order on 16/09/2008 and that the observation in the order that old survey plan is not forwarded as directed is not a ground to dismiss the application, as the petitioner himself has produced the old survey plan. In the circumstances, I set aside Exhibit P4 order impugned in this writ petition and direct the court below to have the property measured as per old survey plan as W.P(c) No. 34310/2008 3 well as desired by both sides as seen from their applications, provided old survey plan has already been produced by the petitioner/defendant in the court below on or before 16/09/2008 as submitted. The petitioner shall produce a copy of this judgment in the court below forthwith with notice to the counsel for the respondent as this writ petition is being disposed of without notice to the respondent. K.P. BALACHANDRAN, JUDGE scm