IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No.2756 of 2009 (C) --------------------------------- OS.40/2005 of MUSNIFF COURT,ADOOR .................... PETITIONER: --------------- SIMON CHERIA, SUNSHINE VEEDU, KOTTANALLOOR MURI, ERATHU VILLAGE, ADOOR TALUK. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM RESPONDENTS: ----------------- 1. BABU, CHITTUNDAYIL VEEDU, KONNAMANKARA MURI, ADOOR VILLAGE, ADOOR TALUK. 2. P.G.SIMON, PLAVILAYIL VEEDU, VADAKKEDATHU MURI, ERATHU VILLAGE, ADOOR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.2756 of 2009 ------------------------------------------------ Dated this the 28th day of January, 2009 JUDGMENT The plaintiff in O.S.No.40/05 on the file of the Munsiff's Court, Adoor is the petitioner. He filed Exhibit P1 application (I.A.No.1802/08) in the court below on 5.11.2008 to have a commission issued to measure out the properties as per the old survey plan and the documents of title and the court below vide Exhibit P3 order dismissed the said application observing that there is already a commission report, plan and mahazar filed on 3.6.2008 measuring out the property on the basis of re-survey plan and that without setting aside the earlier report and plan, a second commission application is not maintainable. The said order has been passed on 10.12.2008. Copy of the said order has been taken delivery of on 22.12.2008 and this writ W. P. C. No.2756 of 2009 -2- petition is filed as late as on 27.1.2009, after more than a month. It is submitted that the suit is included for trial in the special list on 9.2.2009. 2. It is submitted by counsel for the plaintiff that without a plan obtained measuring out the property as per old survey and the documents of title, the dispute in the case cannot be resolved and that the court below should have at least remitted the original commission report and plan to the same commissioner if at all a fresh commission could not be issued without setting aside the earlier commission report and plan. 3. It is seen that the question as to whether the dispute could be resolved without obtaining a plan prepared as per the old survey and the title documents of parties has not been considered by the court below while dismissing the commission application vide W. P. C. No.2756 of 2009 -3- Ext.P3 order. However, inasmuch as the suit itself is in the special list this Court will not be justified in interfering at this stage to direct a commission being issued in reversal of Ext.P3 order. All the same, I direct the court below to consider the question as to whether in the light of the prayers in the plaint, without obtaining a plan prepared as per the old survey and title documents of the parties the dispute involved in the suit can be resolved and set at rest. If the court is of the view that to obtain such a plan would be necessary to set at rest the dispute between the parties the court shall allow the commission application appointing the same commissioner or in the course of trial if the court finds that such a plan and report is necessary to be got down to resolve the dispute, the court may issue a commission at that stage by remitting the W. P. C. No.2756 of 2009 -4- report and plan to the same commissioner and shall however, avoid dismissal of the suit for the reason that the petitioner/plaintiff has not applied in time to have a commission report and plan obtained demarcating the property as per the old survey plan and title documents of the parties. 4. With the above direction, I dispose of this Writ Petition. The petitioner is directed to produce a copy of this judgment in the court below with notice to counsel for respondents/defendants in the court below as this Writ Petition is being disposed of without notice to them. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-