IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 OP(C).No. 2515 of 2011(O) -------------------------------- IA.1032/2011 IN OS.207/2005 of PRINCIPAL MUNSIFF, ALAPPUZHA .................... PETITIONER/1ST DEFENDANT: ------------------------------------ RAJESH BABU, S/O.CHANDRAPALAN AGED 51 YEARS, CHUNDRAPALA SADANAM KALARCODE, SANATHANAPURAM P.O., ALAPPUZHA. BY ADVS. SRI.P.KRISHNA KUMAR (ALAPPUZHA) SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): --------------------- SHYLAJA DEVI, W/O.DAYANANDAN, AGED 50 YEARS, SOUTH ARYADU, AVALOOKKUNNU P.O., ALAPPUZHA 688 006. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO.2515/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORIGINAL PLAINT DATED 11/03/2005 P2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM DATED 31/01/2011. P3: COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDENT OF ALAPPUZHA MUNICIPALITY DATED 01/12/2010. P4: COPY OF THE COMMISSION APPLICATION AND THE ACCOMPANYING AFFIDAVIT DATED 12/03/2011. P5: COPY OF THE ORDER I.A. NO.1032/2011 IN O.S.NO.207/2007 OF THE MUNSIFF COURT, ALAPPUZHA. P6: COPY OF THE JUDGMENT PASSED IN C.M.A. NO.13/2011 OF THE DISTRICT COURT, ALAPPUZHA DATED 30/07/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2515 of 2011 ==================================== Dated this the 02nd day of August, 2011 J U D G M E N T Petitioners are defendants in O.S. No.207 of 2005 of the court of learned Munsiff, Alappuzha. Respondent-plaintiff filed the suit for a decree for prohibitory injunction claiming title over the suit property as per two assignment deeds sought to be executed by the father of petitioner. Initially there was an ex parte decree which petitioner challenged in appeal. There was a remand with a direction to dispose of the suit within three months. Thereafter petitioner written statement and counter claim on 31.01.2011 seeking a declaration that the documents relied on by the respondent are null and void having been got executed without the free consent of the father of petitioner. He also prayed for a O.P(C) No.2514 of 2011 -: 2 :- decree for prohibitory injunction. Thereafter respondent amended the plaint to incorporate a prayer for mandatory injunction alleging that petitioner has trespassed into a portion of the suit property or portion of it as the case may be. Petitioner filed Ext.P4, application for issue of a commission on 12.03.2011 with a request to measure the 98 cents referred to in the counter claim schedule and separately identify the 10 cents as per the documents she has relied on. According to the petitioner if measurement is taken it will show that boundaries in the impugned documents did not tally with the boundaries at the spot and old house situated in the suit property also did not form part of the property referred to in the impugned documents. Learned Munsiff dismissed that application as per Ext.P5, order dated O.P(C) No.2514 of 2011 -: 3 :- 23.03.2011. That order was challenged in C.M.A. No.13 of 2011. Later that appeal was dismissed as not maintainable. It is stated that petitioner got a copy of the judgment only on 18.07.2011. Thereafter this petition is filed on 01.08.2011 challenging Ext.P5 order dated 23.03.2011. Learned counsel submitted that in the circumstances stated above filing of the Original Petition is delayed. In the circumstances it is stated that appointment of an Advocate Commissioner is necessary. Learned counsel submitted that after evidence of respondent was over Ext.P4, application was preferred. Six witnesses have already been examined for the petitioner. It is at that stage petitioner wants this Court to interfere and appoint an Advocate Commissioner for inspection of the property. I must bear in mind that main challenge in the O.P(C) No.2514 of 2011 -: 4 :- counter claim is to validity of the assignment deeds that respondent claimed to have obtained from the father of the petitioner. I am not inclined to think that at this belated stage this Court has to interfere. But I make it clear that dismissal of this Original Petition will not prevent the petitioner from challenging correctness of the impugned order in an appeal that may be preferred against the judgment and decree in the appeal/claim petition. Resultantly, this Original Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv