IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 OP(C).No. 292 of 2011(O) -------------------------------- OS.373/2009 of I ADDL.MUNSIFF COURT, NEYYATTINKARA .................... PETITIONER: ------------------- BIYATRIES, VADAYARPURAYIDOM, KOTTAPPURAM,VIZHINJAM, THIRUVANANTHAPURAM BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. RESPONDENT(S): ------------------------ 1. EDWIN, VADAYARPURAYIDOM, KOTTAPURAM,VIZHINJAM, TRIVANDRUM, PIN 695 526. 2. ROSEMARY, VADAYARPURAYIDOM, KOTTAPURAM,VIZHINJAM TRIVANDRUM, PIN 695 526. ADV. SRI.BINDU SREEKUMAR FOR R1 & R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 292/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE PLAINT IN O.S.NO.373 OF 2009 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT - I, NEYYATTINKARA. EXT.P2: COPY OF THE ORDER DATED 21.5.2010 IN I.A.NO.1510 OF 2010 IN O.S.NO.373 OF 2009. EXT.P3: COPY OF THE ORDER DATED 21.5.2010 IN I.A.NO.2218 OF 2010 IN O.S.NO.373 OF 2009. EXT.P4: COPY OF THE REPORT AND PLAN FILED IN O.S.NO.373 OF 2009. EXTP5: COPY OF I.A.NO.2641 OF 2010 IN O.S.NO.373 OF 2009. EXT.P6: COPY OF THE PLAINT IN O.S.NO.578 OF 2009 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA. EXT.P7: COPY OF THE ORDER DATED 3.8.2010 IN I.A.NO.2641 OF 2010 IN O.S.NO.373 OF 2009. RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ------------------------------- O.P.(C).No.292 of 2011 ------------------------------- Dated this the 6th day of June, 2011 JUDGMENT The petitioner, the plaintiff in O.S.No.373 of 2009 on the file of the court of the Additional Munsiff-I, Neyyattinkara, filed I.A.No.2641 of 2010 to appoint a Commissioner to supervise the thatching of the old building in the property. The court below dismissed the application on the ground that on an earlier occasion, I.A.No.2218 of 2010 filed by the petitioner for temporary injunction restraining the respondent from trespassing into the plaint schedule property and from doing any act so as to cause obstruction to the thatching of the roof of the building in the A schedule property was dismissed on 21.5.2010. The court below also held that going by the Commissioner's report and plan, the property claimed by the plaintiff and the property of the defendants overlap. In these circumstances, the court below held that it is necessary to take evidence in the case O.P.(C)No.292/11 2 to decide the rival claims of the parties and only thereafter prayer for any such direction as prayed for by the petitioner can be considered. I have perused the Commissioner's plan. Going by the plan, the reason stated by the court below for dismissing the application appears to be correct. 2. The learned counsel appearing for the respondents submitted that the case is posted for evidence to 6.6.2011. 3. In the facts and circumstances of the case, it cannot be said that the order passed by the court below suffers from any illegality or irregularity warranting interference under Article 227 of the Constitution of India. Moreover, the suit is listed for trial. At this stage, I do not think it fit to exercise the jurisdiction under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. K.T.SANKARAN JUDGE csl