IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 OP(C).No. 2757 of 2011(O) -------------------------------------- IA. 6211/2010 & 6254/2010 IN OS.501/2009 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER (S): -------------------- PURUSHAN, S/O. KUTTO, CHAKKARIKUNNEL HOUSE, EDAPPALLY, SOUTH VILLAGE, ELAMAKKARA.P.O. BY ADV. SRI.DINESH R.SHENOY RESPONDENT(S): -------------------------- 1. CHANDRAN, S/O. KESAVAN, BHAIRAVAN, PARAMBIL, EDAPPALLY, ELAMAKKARA - 682 026. 2. SURESH, S/O. KESAVAN, -DO- DO- THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.2757/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 1233/2008, MUNSIFF COURT, ERNAKULAM (NOW OS. 501/2009, SUB COURT, ERNAKULAM. P2:- COPY OF THE AMENDED WRITTEN STATEMENT FILED IN OS.501/2009, SUB COURT, ERNAKULAM. P3:- COPY OF THE REPORT OF ADVOCATE COMMISSIONER M.D.SUNI, DTD. 7.7.2010, TOGETHER WITH SURVEY SKETCH. P4:- COPY OF THE OBJECTION DT.D 18.8.2010 TO THE COMMISSION REPORT FILED BY THE PETITIONER DTD. 18.8.2010 IN OS.501/2009, SUB COURT, ERNAKULAM. P5:- COPY OF THE IA. 6211/2010 IN OS. 501/2009, SUB COURT, ERNAKULAM. P6:- COPY OF THE IA. 107/2011 IN OS. 501/2009, SUB COURT, ERNAKULAM. P7:- COPY OF THE COUNTER AFFIDAVIT FILED IN IA. 107/2011 IN OS. 501/2009, SUB COURT, ERNAKULAM. P8:- COPY OF THE ADDITIONAL WRITTEN STATEMENT DTD. 1.3.2011 FILED BY THE PETITIONER. P9:- COPY OF THE ORDER DTD. 20.11.2010 IN IA.6211/2010 IN OS. 501/09, SUB COURT, ERNAKULAM. P10:- COPY OF THE IA. 3251/2011 IN OS. 501/2009, SUB COURT, ERNAKULAM TOGETHER WITH LIST OF WITNESS. P11:- COPY OF THE IA. 4565/2011 IN OS. 501/2009, SUB COURT, ERNAKULAM. P12:- COPY OF THE COUNTER AFFIDAVIT IN IA. 4565/2011 IN OS. 501/2009, SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2757 of 2011 ==================================== Dated this the 23rd day of August, 2011 J U D G M E N T Exhibit P9, order to the extent it related to I.A. No.6211 of 2010 and the order on Ext.P10, application in O.S. No.501 of 2009 of the court of learned Sub Judge, Ernakulam are under challenge. Petitioner is the defendant in the suit originally filed for fixation of boundary based on a gift deed stated to be executed by the father of respondents. Advocate Commissioner submitted report and plan which were not to the satisfaction of petitioner and thereon he filed I.A. No.6211 of 2010 to remit the report and plan and I.A. No.6254 of 2010 to permit him serve interrogatories to the respondents. Latter application was allowed and the former application was dismissed as per Ext.P9, order observing that it is open to the petitioner to raise all the contention regarding correctness of the report and plan in the course of trial. 2. Learned counsel for petitioner contends that learned Sub Judge ought not have relegated the enquiry regarding correctness of the report and plan to the final stage and at any rate, was not correct in refusing to issue summons to the witness to produce relevant documents. Learned counsel submitted that petitioner was not able to produce a copy of the order on Ext.P10, application. O.P(C) No.2757 of 2011 -: 2 :- 3. Learned counsel for respondents contended that so far as I.A. No.6211 of 2011 is concerned, the right of petitioner to object to the report and plan is not foreclosed since it is open to him to agitate the issue at the time of trial and so far as dismissal of Ext.P10, application is concerned it is contended that many of the documents sought to be summoned are irrelevant. Though petitioner has not produced copy of order on Ext.P10, application having heard both sides I am inclined to consider the correctness of that order since both the parties are present before me and case is listed for posted for trial in the list on 24.08.2011 and if petitioner is directed to produce a copy of the order, it would only prolong the case. Hence notwithstanding that a copy of the order dismissing Ext.P10, application is not produced I am inclined to consider Ext.P10, application. 4. So far as rejection of I.A. No.6211 of 2010 is concerned, having heard counsel on both sides I do not find reason to interfere since as pointed out by learned counsel for respondents it is not as if the right of petitioner to challenge the report and plan is foreclosed and it is open to him to agitate the issue in the course of trial. So far as Ext.P10, application is concerned, I am inclined to think that petitioner should have been given liberty to adduce evidence regarding his contention. The question of relevancy if any could be decided in the course of trial. Original Petition is allowed to the extent that dismissal of Ext.P10 O.P(C) No.2757 of 2011 -: 3 :- application is set aside and that application will stand allowed. Petitioner is permitted to summon the witnesses and documents referred to in Ext.P10, application. I make it clear that relevancy, admissibility and probative value of the documents produced could be considered by the learned Sub Judge in the course of trial. THOMAS P. JOSEPH, JUDGE. vsv