IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 2944 of 2010(O) ---------------------------------- OS.135/2007 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER(S): ---------------------- SUJA MATHEW, W/O.MATHEW, MARAMKANDATHIL HOUSE, UDUMBANOOR VILLAGE, THODUPUZHA. BY ADV. MR.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): ------------------------- 1. BABY, S/O.KURIAKOSE, MARAMKANDATHIL HOUSE, CHITTILAMCHERRY KARA, CHITTILAMCHERRY VILLAGE, PALGHAT. 2. ANOOP, S/O.SASI, NADAKKANAL HOUSE, IDAMARAKU KARA, UDUMBANOOR VILLAGE, THODUPUZHA. 3. MURUGAN, S/O.PADMANABHAN, KARIATHOTTATHIL HOUSE, PALLIKKAMURI KARA, KARUMANNOOR VILLAGE, THODUPUZHA. 4. LUKOSE, S/O.AUGUSTINE, POOVAMTHURAUTHIL HOUSE, UDUMPANOOR KARA, UDUMPANOOR VILLAGE, THODUPUZHA. 5. SABU, S/O.AUGUSTINE, RESIDING -DO- R4 BY ADVS. MR.A.JAYASANKAR, MR.MANU GOVIND SMT.MEERA B. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.2944/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 135/2007 BEFORE THE MUNSIFF COURT, THODUPUZHA. P2:- COPY OF THE UNSIGNED AGREEMENT DTD. 14.9.2009. P3:- COPY OF THE SURVEY REPORT SUBMITTED BY THE TALUK SURVEYOR DTD. 19.1.2009. P3(a):- COPY OF THE SKETCH. P4:- COPY OF THE PETITION IN IA. 22/2010 IN OS. 135/2007 BEFORE THE MUNSIFF COURT, THODUPUZHA. P5:- COPY OF THE ORDER IN IA.22/2010 IN OS. 135/2007 OF THE MUNSIFF COURT, THODUPUZHA. P6:- COPY OF THE ORDER IN IA. 23/2010 IN OS. 135/2007 OF MUNSIFF COURT, THODUPUZHA. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 2944 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. JUDGMENT In this writ petition filed under Article 227 of the Constitution of India, the petitioner assails Exts.P5 and P6 orders. The petitioner filed O.S. 135 of 2007 before the Munsiff's Court, Thodupuzha for permanent prohibitory injunction and other reliefs. The petitioner claims to be the owner and in possession of 23 cents of land in Sy. No.399/1/5 of Udumbanoor Village. Copy of the plaint in the suit is produced as Ext.P1. It contains all the details. It is claimed that along with suit, the petitioner had filed an injunction application as I.A.614 of 2007 for interim injunction, which was granted by the court below. It is alleged that contrary to the order from the court, the first respondent executed sale deed in favour of respondents 2 to 5. Therefore the petitioner filed an impleading petition to implead them also on the party array. He has also field a petition to take action WPC. 2944/2010. 2 against the first respondent for violating the order of injunction. While so, the survey authorities sent a notice to the petitioner stating that the petitioner's property will be surveyed on 28.3.2009 for effecting mutation in the name of respondents 2 to 5. Against that intimation, the petitioner approached this court and it is stated that the writ petition is still pending. The writ petition was sent to the Adalat for settlement. In the Adalat an agreement was entered into between the parties, which is produced as Ext.P2. Based on the agreement the Taluk Surveyor conducted a survey and submitted a report and sketch. Copy of the report and sketch are produced as Exts.P3 and P3(a). The Taluk Surveyor reported that based on the documents produced by both the parties the disputed 23 cents could not be identified. Narrating the above facts, the petitioner filed a petition before the Munsiff's Court, Thodupuzha. The petitioner pointed out that in the light of the report of the Taluk Surveyor a fresh commission has to be issued and the Taluk Surveyor be directed to measure the property. The WPC. 2944/2010. 3 petition so filed in the suit is produced as Ext.P4. I.A. 23 of 2010 was also filed for the appointment of a Surveyor. The complaint of the petitioner is that without considering the contention raised in the petition, the court below dismissed the petitions holding that the suit is listed for trial. The petitioner says that the court below was not justified in dismissing the petitions. 2. Notice was served on the respondents, and they were heard. 3. The petitioner has produced the plaint in the suit filed by him. The suit s one for permanent prohibitory injunction restraining the defendant from trespassing into the property and executing documents in relation to the suit property. In the nature of the suit, it is very much necessary to obtain a commission report and plan especially when the defendants disputed the right of the plaintiff. It is seen that communication was issued from the Legal Services of this court to the Taluk Surveyor to measure the property. That was so done. Dissatisfied with the report, the petitioner had WPC. 2944/2010. 4 moved the court below for getting a fresh report and plan after making the necessary measurements. The impugned order shows that on the date when the petition was posted, there was no representation, then the suit was posted for hearing and the petitions were dismissed. 4. Learned counsel appearing for the petitioner pointed out that the petitioner ought to have been given an opportunity to substantiate their contentions and the court below was not justified in dismissing the petition. It is also stated that the counsel appearing for the petitioner was out of station on the date on which the petitions were posted and unfortunately and representation on his behalf could not be made. It is pointed out that the petitioner may be given an opportunity to substantiate their case. 5. A reading of the order says that on the date on which the petitions were posted for hearing, there was no representation on behalf of the petitioner. The court dismissed the petitions. The court could not be found fault with. True it is also stated that the suit is listed for trial. But WPC. 2944/2010. 5 that by itself may not be a ground to reject the petitions. But the fact still is that there was no representation. However, considering the nature of the suit and also the issues involved in the suit, the petitioner is to be given an opportunity to impress upon the court the necessity to have a Commissioner and Surveyor appointed for preparing a proper sketch and report. In the result, this petition is allowed and the impugned orders are set aside and the court below is directed to take up I.A. Nos. 22 and 23 of 2010 and take a decision thereon in accordance with law and in the light of what has been stated above. P. BHAVADASAN, JUDGE sb.