IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 OP(C).NO. 88 OF 2010(O) ------------------------------------ OS.167/2009 OF MUNSIFF COURT, TIRUR .................... PETITIONER: ------------------- BABU K., S/O.PARANGODAN, KOLLAMPARAMBIL HOUSE, VETTOM POST, VETTOM AMSOM VEMANNA DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER MANOJ K., S/O.PARANGODAN, DO. DO. DO. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): ------------------------- PATTEKKATTIL KUNJHAPPAN, S/O.CHENNAPPAN, VETTOM POST, VETTOM AMSOM VEMANNA DESOM, TIRUR TALUK, PIN-676 102, MALAPPURAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.88 of 2010 ==================================== Dated this the 28th day of September, 2010 J U D G M E N T Plaintiff in O.S. No.167 of 2009 of the court of learned Munsiff, Thrissur is the petitioner before me challenging Ext.P5, order refusing to appoint a survey commission at a stage when parties had led their evidence. According to the petitioner, he has constructed a compound wall towards northern side of his property leaving a portion of his property on the further north for protection of his property and compound wall. Respondent is attempting to interfere with the compound wall in such a way as to affect lateral support for his property. Respondent contended that compound wall was constructed destroying a pathway which respondent and others were using. Respondent also stated that he is taking steps to institute a suit for fixation of boundary (but that not happened). Learned Munsiff framed issue among other things regarding identity of the suit property and parties went to trial. After the evidence was almost over petitioner came with I.A. No.2347 of 2010 with a request to appoint a Commissioner to measure and identify the property. That application was dismissed O.P(C) No.88 of 2010 -: 2 :- by learned Munsiff observing that application is filed only after evidence was closed and in spite of giving several chances no steps were taken. Learned counsel for petitioner raised two contentions; firstly, in the nature of the contentions raised by the respondent identification of the property may become necessary and secondly, assuming that such identification is not required the issue framed as to identity of the property was required to be recast and in spite of making an oral request that has not been done. 2. In I.A. No.2347 of 2010 there is no request for recasting of issue. If issue has been improperly framed or such an issue does not arise for decision from the pleadings of the parties it is open to the learned Munsiff to recast the issues in the appropriate manner at any stage of the proceeding. If petitioner has a grievance that the issue is not properly framed it is open to him to move appropriate application before the leaned Munsiff in that regard and if any such request is made that request has to be considered as provided under law having regard to the pleadings of the parties. 3. So far as issue of survey commission is concerned I am not inclined to interfere with the order passed by the learned O.P(C) No.88 of 2010 -: 3 :- Munsiff for the reason that the application has been filed only after evidence was closed though respondent filed written statement and issues were framed sufficiently earlier and there was sufficient time for petitioner to move appropriate application. I make it clear that if found necessary it will be open to the petitioner to challenge correctness of Ext.P5, order in a superior court in an appeal against the judgment and decree that may be passed in O.S. No.167 of 2009. With the above observations this Writ Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv