IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 OP(C).No. 2327 of 2011(O) ------------------------------------ OS.762/2008 of ADDL.MUNSIFF COURT,KOZHIKODE-II .................... PETITIONERS/PLAINTIFFS ------------------------------------------ 1. K.M.AMINABI, D/O.C.T.AHAMMED KOYA, `JASEEN'S, P.O.NALLALAM, CALICUT-27. 2. K.M.NASEEMA, D/O.C.T.AHAMMED KOYA, `JASEEN'S, P.O.NALLALAM, CALICUT-27. 3. K.M.NAZEER AHAMMED,S/O.AHAMMED KOYA, `JASEEN'S', P.O.NALLALAM, CALICUT-27, (BY POWER OF ATTORNEY HOLDER, K.M.SHABEER AHAMMED, S/O.AHAMMED KOYA, `JASEEN'S, P.O.NALLALAM, CALICUT-27). 4. K.M.JASEENA, D/O.C.T.AHAMMED KOYA, `JASEEN'S, P.O.NALLALAM, CALICUT-27. BY ADVS. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. PATTERI KUNNATH KUNJUMON, S/O.MOIDEEN, NO.15, SBI STAFF HOUSING COLONY, KOVOOR, CHEVAYOOR, CALICUT-17. 2. POONCHOLA SASIDHARAN, S/O.VELAYUDHAN, POONCHOLA HOUSE, CHERUVANNOOR, KOZHIKODE. R1 BY ADV. SRI.V.V.SURENDRAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.2327/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.762/2008. P2:- COPY OF THE WRITTEN STATEMENT DTD. 8.1.2009 IN OS. 762/2008. P3:- COPY OF THE PLAN AND REPORT DTD. 1.11.08 FILED BY THE COMMISSIONER IN OS. NO.762/2008. P4:- COPY OF THE IA. 2538/2011 FOR REMITTING THE COMMISSION REPORT . P5:- COPY OF THE ORDER DTD. 8.7.2011 IN IA. 2538/2011. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2327 of 2011 -------------------------------------- Dated this the 4th day of August, 2011. JUDGMENT Plaintiffs in O.S.No.762 of 2008 of the court of learned Additional Munsiff- II, Kozhikode are the petitioners before me challenging Ext.P5, order refusing to remit the report of Advocate Commissioner for fresh identification of the property. That is a suit for prohibitory injunction filed by the petitioner against respondents/defendants. Advocate Commissioner submitted Ext.P3, report and plan dated 01.11.2008. In the meantime the plaint itself was amended as per order on I.A.No.4011 of 2010. The case was posted for trial in the list on 07.07.2011. While so, petitioner filed Ext.P4, application on 06.07.2011 to remit the report and plan of the Advocate Commissioner for fresh identification of property and submission of fresh report and plan. That application was dismissed by Ext.P5, order dated 08.07.2011. Learned counsel submitted that to grant a decree for prohibitory injunction property has to be identified. Learned counsel for respondents contended that this being a suit for injunction alone, what is required to be decided is only the possession of parties and that the Commissioner has filed a report showing the boundaries of the property as he could identified. In that view of the matter a further identification of the property without any prayer based on title is not required. OP(C) No.2327/2011 2 2. It is seen that learned Munsiff has not gone into these issues while disposing of Ext.P4, application. Merely on the other hand, Ext.P4, application is disallowed for the reason that it is belated. 3. The suit was filed in the year 2008 and the Advocate Commissioner inspected the property and submitted his report and plan in November, 2008. First respondent filed written statement in the year 2009 (later he transferred the property to the second respondent). There was an amendment of the plaint in the year 2010 and the case was posted in the list for trial on 07.07.2011. It is on the eve of the day the case was to be taken up for trial that wisdom dawned on petitioner and he thought that there must be a proper identification of the property. 4. Parties shall not be under the impression that superior courts are to condone any delay or laches on their part. Here is a case where the application for remission of Advocate Commissioner's report and plan if at all required, was not prepared within the appropriate time. Instead, the application was filed on the previous day of the day the case was taken up for trial. Having heard learned counsel on both sides I am of the view that opportunity should be given to the petitioners to raise their contentions in Ext.P4, application before learned Additional Munsiff-II, Kozhikode but on terms of cost. OP(C) No.2327/2011 3 Resultantly this Original Petition is allowed in the following lines: i. Ext.P5, order is set aside and Ext.P4, application is remitted to the learned Additional Munsiff-II, Kozhikode for fresh decision on merit on condition that petitioners deposit in the trial court for payment to the respondents by way of cost `3,000/- (Rupees three thousand only) within two weeks from this day. ii. On payment of cost as aforesaid, Ext.P5, will stand set aside and Ext.P4, application remitted to the learned Additional Munsiff-II for fresh decision. In that event learned Additional Munsiff shall consider whether remission of the report and plan is required having regard to the nature of reliefs sought for and the identification if any already made in the report and plan. iii. In case the condition above stated is not complied, Original Petition will stand dismissed in confirmation of Ext.P5, order. THOMAS P.JOSEPH, Judge. cks