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. 2494 of 2011(O) ------------------------- AS.246/2007 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER(S): ------------------------- 1. UNNIKRISHNAN,S/O.SARASWATHY, RESIDING AT PALAKADI,KIZHAKKEPURAKKAL, VATANAPPILLY AMSOM AND DESOM, CHAVAKKAD TALUK. 2. PRASANNA,D/O-DO...IN DO..DO....DO... 3. NANDAN,S/O.-DO-IN DO-..DO..DO... BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADV. SRI.P.B.KRISHNAN, SMT.GEETHA P.MENON, SRI.P.B.SUBRAMANIAN. RESPONDENT(S): --------------------------- 1. BALAKRISHAN, S/O.PALAKADI THEKKE PURAKKAL NARAYANAN, VATANAPILLY AMSOM AND DESOM, CHAVAKKAD TALUK-680 614. 2. MOHANAN, S/O.PALAKADI KIZHAKEPURAKKAL RAMANKUTTY K, IN -DO- 3. THILAKAN, S/O.PALAKADI KIZHAKEPURAKKAL KUNCHU, IN-DO-..DO... 4. RAJI @ GANESAN, S/O.PALAKADI KIZHAKEPURAKKAL RAMU, IN..-DO- 5. PRADEEP, S/O.PALAKADI KIZHAKKEPURAKKALNARAYANAN, IN -DO- 6. BHASKARAN,S/O.PALAKADI THEKKE PURAKKAL BHARATHAN,IN -DO- 7. BABU, S/O.PALAKADI KIZHAKKEPURAKKAL BALAN, IN-DO-..DO... Kss ..2/- ..2.... OPC.NO.2494/2011 O 8. PRAKASAN, S/O.OF DO...RESIDING IN ..DO.DO.-DO.. 9. RADHA, W/O.PALAKADI KIZHAKEPURAKKAL PRAKASAN, IN-DO- 10. RATHI, D/O.RADHA, RESIDING IN ..DO..DO... 11. REJEESH, S/O...DO..IN ...DO..DO..DO.... 12. REKHA, D/O.-DO-.. IN..DO..DO.... 13. RESMI,D/O.-DO-IN ..DO..DO... 14.JAYANTHI,W/O.PADINJAROOTT UNNIKRISHNAN, NETTISSERY AMSOM AND DESOM, THRISSUR TALUK-680 609. 15. JAYA, W/O.THRIKALAPURASEKHARATH PRASAD, KIZHAMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK-680 567. 16. REMA, W/O.THAZHATHPURAKKAL SIVADAS, THRISSUR TALUK-680 567. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2494/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN O.S.NO.602 OF 2000, MUNSIFF'S COURT, CHAVAKKAD DTD. 10/12/2009. P2: COPY OF THE JUDGMENT IN O.S.NO.200 OF 1999, MUNSIFF'SCOURT, CHAVAKKAD DTD. 19/10/2006. P3: COPY OF THE APPLICATION, I.A.NO.699 OF 2011 IN A.S.NO.246 OF 2007, SUB COURT, THRISSUR DTD. 10/01/2011. P4: COPY OF THE OBJECTION FILED BY DEFENDANTS 2 AND 3 TO I.A.NO.699 OF 2011 IN A.S.NO.246 OF 2007, SUB COURT, THRISSUR DTD.NIL. P5: COPY OF THE ORDER IN I.A.NO.699 OF 2011 IN AS.NO.246 OF 2007, SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2494 of 2011 --------------------------------------- Dated this 02nd day of August, 2011 JUDGMENT Petitioners are appellants 2 to 4 in A.S.No.246 of 2007 of the Court of learned Sub Judge, Thrissur. That is a suit for prohibitory injunction against trespass into the suit property. That appeal arose from O.S.No.200 of 1999 of the Court of learned Munsiff, Chavakkad for a decree for prohibitory injunction against trespass. The suit was dismissed for want of identity of property. In the appeal, petitioners filed I.A.No.699 of 2011 to issue a survey commission to identify the property as per documents of title relied on by petitioners. That application was dismissed by the learned Sub Judge by Ext.P5, order which is under challenge. Learned counsel submitted that having regard to the facts of the case it was necessary to depute an Advocate Commissioner to identify the property with the assistance of a Surveyor. 2. Time and again it has been pointed out by this Court and the Supreme Court that when a request of reception of of additional evidence is made in the appeal such request has to be decided along with the appeal itself. That is because if such request is allowed, it may, having regard to the facts of the case O.P(C).No.2494 of 2011 -: 2 :- necessitate a remand for further evidence. It is on hearing the appeal that the Court has the occasion to decide whether additional evidence is required or could be admitted or not. The message given in those decisions does not appear to have reached the many of the subordinate Courts. If it is so, it is unfortunate. In this case petitioners requested for a survey commission in the appeal. The appropriate time to decide on that application was when the appeal is heard. But since petitioners themselves invited an order on I.A.No.699 of 2011 before the appropriate time I am not inclined to interfere with the order for the said reason. 3. Then the question is whether Ext.P5, order requires interference. Learned Sub Judge has referred to the situation arising from the existing reports and plans (Exts.C1 to C6) submitted by the Advocate Commissioner in the trial court, after inspection of the properties several times. Suit is merely for a decree for prohibitory injunction. Having heard learned counsel for petitioners and gone trough the impugned order I am not inclined to think that interference with Ext.P5, order is required. Original petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-