IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 OP(C).No. 3257 of 2011(O) ------------------------- 0S.312/2008 of MUNSIFF COURT, TIRUR .................... PETITIONER: ----------- KUNHAHAMEDKUTTY, S/O KUNHAHAMED @ BAVA HAJI, THIRUNAVAYA KALATHIL KALATHUPURAYIL, NADUVATTOM AMSOM, CHELLOOR DESOM, TIRUR TALUK, P.O.PAZHOOR. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): --------------- 1. LICY, D/O NABEESUMMA, W/O ALI, NADUVATTOM AMSOM, CHELLOOR DESOM, TIRUR TALUK 679 592. 2. NABEESUMMA, W/O THANDAM VALAPPIL CHACKU VALAPPIL MARAKKAR, NADUVATTOM AMSOM, CHELLOOR DESOM, TIRUR TALUK 679 592. 3. PULLAKKATTIL BAPUTTY, S/O UNNEENKUTTY, KUTTIPPURAM AMSOM,KULAKKAD DESOM, TIRUR TALUK 679 571. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BKA OP(C).No. 3257 of 2011(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: THE TRUE COPY OF THE PLAINT IN O.S.NO.312/2008 FILED BEFORE THE MUNSIFF COURT,TIRUR DATED 10.11.2008. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS IN O.S.NO.312/2008 BEFORE THE MUNSIFF COURT,TIRUR DATED 11.6.2009 EXT.P3 A TRUE COPY OF THE 1ST COMMISSIONER'S REPORT DATED 12.12.2008 IN O.S.NO. 312/2008 BEFORE MUNSIFF COURT, TIRUR. EXT.P4 A TRUE COPY OF THE APPLICATION I.A.NO.852/2010 FILED BY THE RESPONDENTS TO REMIT THE COMMISSIONER'S REPORT IN OS NO.312/2008 DATED 15.03.2010. EXT.P5 A TRUE COPY OF THE COMMISSIONER'S REPORT AND SKETCH IN I.A. NO.858/2010 IN O.S.NO. 312/2008 BEFORE MUNISFF COURT, TIRUR DATED 20.01.2011 EXT.P6 A TRUE COPY OF THE APPLICATION I.A.NO.335/2011 IN OS NO.312/2008 BEFORE MUNSIFF COURT, TIRUR DATED 02.02.2011. EXT.P7 A TRUE COPY OF THE COUNTER TO THE I.A. NO.335/2011 IN O.S.NO.312/2008 BEFORE MUNSIFF COURT,TIRUR DATED 05.03.2011. EXT.P8 A TRUE COPY OF THE ORDER IN I.A.NO.335/2011 IN O.S.NO.312/2008 BEFORE MUNSIFF COURT, TIRUR DATED 08.03.2011. EXT.P9 A TYPED COPY OF THE ORDER IN I.A.NO.843/2011 IN O.S.NO.312/2008 DATED 01.08.2011, MUNSIFF COURT, TIRUR DATED THIS THE 10TH DAY OF OCTOBER, 2011. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE BKA THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3257 of 2011 ==================================== Dated this the 11th day of October, 2011 J U D G M E N T Petitioner is aggrieved by Ext.P8, order dated 08.03.2011 in O.S. No.312 of 2008 of the court of learned Munsiff, Tirur. That is a suit for recovery of plaint B schedule on the strength of title. The Advocate Commissioner submitted Ext.P3, report which was remitted and the Commissioner submitted Ext.P5, report and plan. Petitioner filed Ext.P6, application to remit Ext.P5, report and plan which was rejected by the learned Munsiff. That order is under challenge. Learned counsel contends that since the prayer in the suit is for recovery of plaint B schedule on the strength of title, proper identification of the property with reference to measurement of property is required. It is also submitted that the suit was dismissed for default and later restored to file but thereafter it was not posted for steps and instead, the case was posted in the list for trial. 2. I have been taken through Ext.P8, order. Learned Munsiff has observed that petitioner did not take effective steps to identify the suit property. If the case was posted for steps and O.P(C) No.3257 of 2011 -: 2 :- thereafter dismissed for default, it was not necessary that the case was again posted for steps. Respondents filed I.A. No.858 of 2010 as per which a report and plan are obtained. Learned Munsiff has also observed that petitioner did not co-operate with the Advocate Commissioner (as reported by the latter) and that the Advocate Commissioner submitted report and plan with the available evidence and that the inspection was with the assistance of a Surveyor. Learned Munsiff has further observed that the fact as to whether Commissioner has properly identified the property is yet to be proved (admittedly the Commissioner and Surveyor were not examined on Ext.P6, application). There is a report and plan before the court. To find whether the said report and plan are sufficient or not, evidence is required. Learned Munsiff has observed that if in the course of trial it is found that the report is not helpful, the court could remit the report and plan even without any application from any of the parties. It is in the above circumstances that Ext.P6, application was dismissed. 3. Since the learned Munsiff has observed that if in the course of the trial it is found that the report is not helpful the same could be remitted without even application from any of the O.P(C) No.3257 of 2011 -: 3 :- parties I am inclined to think that at this stage interference by this Court is not required. Resultantly without prejudice to the right of petitioner to examine the Advocate Commissioner and the Surveyor in the course of trial of the suit this Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv