IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36795 of 2008(E)
1. N.P.SUBHASHINI, AGED 62 YEARS
... Petitioner
Vs
1. K.V.SATHYAN, AGED 50 YEARS
... Respondent
2. K.V.RAMESAN, AGED 47 YEARS
3. K.V.ANIL KUMAR, AGED 48 YEARS
For Petitioner :SRI.A.T.ANILKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :16/12/2008
O R D E R
K.P. Balachandran, J.
--------------------------
W.P.(C)No.36795 of 2008 E
--------------------------
JUDGMENT
This writ petition is filed by the plaintiff in
O.S.No.306/07 on the file of the Munsiff’s Court,
Ernakulam. She filed I.A.No.8685/08 in the said
suit when the suit was listed for trial and vide
Exhibit P3 order dated 21.11.2008, the trial court
dismissed the application and hence this writ
petition.
2. It is submitted by the counsel for the
petitioner that the suit stood posted for trial in
the list to this day and that it is adjourned to
19.12.2008 on the submission made in the court
below that the petitioner/plaintiff has filed this
writ petition and that it is pending consideration
by this Court.
3. The prayer in the application for issuance
of a commission is to measure out the plaint
schedule property on the basis of resurvey records
WPC 36795/08 2
with the assistance of Taluk Surveyor. The suit is
one for injunction. There is no need to measure
the plaint schedule property and to fix the
boundaries in a suit for prohibitory injunction
simplicitor. It is submitted that there is already
a commission report filed as early as on 21.3.2007
on the application of the petitioner herself. It
is also submitted that necessity for issuance of a
commission is for reason of the earlier
Commissioner having not located the western
boundary of the scheduled property. If at all the
petitioner wanted any clarification, she should
have asked for the commission report being remitted
to the same Commissioner. That was not done.
Further, if at all the petitioner/plaintiff wanted
a commission for surveying the property and
locating its boundaries with the intention to amend
the plaint subsequently, then also, she should not
have slept over her rights after submission of the
commissioner’s report on 21.3.2007. The court
WPC 36795/08 3
below observed that without setting aside the
earlier commission report, a fresh commission
cannot be allowed and further that in the plaint,
in the basic tax receipt, etc., only the survey
number of the property is mentioned, with no record
to show the re-survey number in relation to the
scheduled property. To crown all that, is the
inaction on the part of the petitioner/plaintiff to
file an application sufficiently early. Inasmuch
as the application has been filed when the suit is
posted for trial in the list to this day, I have no
difficulty to conclude that Exhibit P2 application
for issuance of a commission with the assistance of
a Taluk Surveyor was filed only with a view to see
that trial of the case is protracted with some
ulterior motives. It is also to be noted that
carbon copy of the order was issued on 6.12.2008,
but this writ petition is filed only on 12.12.2008.
The order of the court below disallowing the
application for issuance of a commission to measure
WPC 36795/08 4
out the properties on the basis of resurvey, for
the first time when the suit has come up in the
list has only to be upheld and this writ petition
dismissed.
In the result, I dismiss this writ petition.
16th December, 2008 (K.P.Balachandran, Judge)
tkv