IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 OP(C).No. 3355 of 2011(O) ------------------------- AGAINST THE ORDER DATED 01/10/2011 IN IA.62/2011 IN AS.2/1999 of ADDL. DISTRICT COURT, VADAKARA .................... PETITIONER (S): ------------------------------ KRISHNANKANDIYIL CHEKKOTTI, AGED 56 YEARS, S/O.KADUNGON, PADINJARAKARAMEETHAL, KALPATHOOR AMSOM, KIZHINHANYAM DESOM, PERAMBRA, KOYILANDI THALUK, KOZHIKODE DISTRICT. BY ADV. SRI.MANJERI SUNDERRAJ SMT.SUSAN JACOB SMT.K.K.PREETHA RESPONDENT(S): --------------- KARINTHAKOVILAKATH DIVAKARAKURUP, AGED 58 YEARS, S/O.KUNHIRAMAN NAMBIAR, "GOKULAM" VALIYA PARAMBA, NANMINDA DESOM, KOZHIKODE THALUK,PIN 673001.. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.3355/2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT-P1. TRUE COPY OF THE PETITIONER'S IA 62/2011 IN AS 2/1999 IN THE COURT OF ADDL.DISTRICT JUDGE, VATAKARA. EXHIBIT-P2. TRUE COPY OF RESPONDENT'S COUNTER ON IA 62/2011 IN AS 2/1999 IN THE COURT OF ADDL.DISTRICT JUDGE, VATAKARA. EXHIBIT-P3 TRUE COPY OF THE PETITIONER'S ADDENDUM ADDITIONAL AFFIDAVIT IN IA 62/2011 IN AS 2/1999 IN THE COURT OF ADDL.DISTRICT JUDGE, VATAKARA. EXHIBIT-P4. TRUE COPY OF THE ORDER DATED 01/10/2011 IN IA 62/2011 IN AS 2/1999 IN THE COURT OF ADDL.DISTRICT JUDGE, VATAKARA. RESPONDENT(S)' EXHIBITS: NIL True copy P.S. To Judge THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3355 of 2011 ==================================== Dated this the 18th day of October, 2011 J U D G M E N T Exhibit P4, order dated 01.10.2011 on I.A. No.62 of 2011 in A.S. No.2 of 1999 of the court of learned Additional District Judge, Vatakara is under challenge. That appeal arose from the dismissal of O.S. No.215 of 1997 filed by petitioner seeking a decree for prohibitory injunction against the respondent. Respondent in turn filed O.S. No.211 of 1997 seeking similar relief against petitioner. That suit ended in a dismissal which is under challenge in A.S. No.1 of 1999. While appeals were pending before the learned District Judge, petitioner filed Ext.P1, application in A.S. No.2 of 1999 for the issue of a commission alleging that respondent has made certain changes to barbed wire fencing from the situation which existed on the date of the suit. That application was dismissed by the learned District Judge by Ext.P4, order. Learned counsel for petitioner contends that to bring before court the change in the situation brought about by the respondent it was necessary to take out a commission as stated in Ext.P1 and dismissal of the said application is not justified. It is also contended that learned District O.P(C) No.3355 of 2011 -: 2 :- Judge has made some observations in Ext.P4, order as if petitioner was not ready to argue the appeal which was not necessary for a decision on Ext.P1, application. 2. On hearing learned counsel it appears to me that the purport of Ext.P1, application was to show before court (alleged) change of circumstance as it existed on the date of the suit. But I am inclined to think that the suit is to be decided as the situation stood on the date of suit. Moreover, it is reflected from the submission of learned counsel that petitioner has filed O.S. No.46 of 2003 in the court of learned Munsiff, Perambra for fixation of boundary of the property involved in O.S. No.215 of 1997 (which is the subject matter of A.S. No.2 of 1999) and that in O.S. No.46 of 2003 petitioner has applied for and obtained the report of the Advocate Commissioner which states the situation (which is sought to be brought out by Ext.P1, application). Learned counsel also submitted that in case this Court is not inclined to interfere with Ext.P4, order, petitioner may be permitted to produce certified copy of the report and plan in O.S. No.46 of 2003 in A.S. No.2 of 1999 invoking Rule 27 of Order XLI of the Code of Civil Procedure. 3. Since the opposite party is not before me and in view O.P(C) No.3355 of 2011 -: 3 :- of the manner in which I intend to dispose of this Original Petition it is not necessary for me to enter a decision in that matter. I make it clear that it is open to the petitioner to move the court as provided under the law. 4. Having regard to the circumstances stated I am not inclined to think that Ext.P4, order requires interference by this Court. Resultantly, without prejudice to other right if any of petitioner, this Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv