IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 494 of 2010(O)
1. DAVIS,AGED 58 YEARS,
... Petitioner
2. RAPPAI,ARIKKADAN HOUSE, ALOOR VILLAGE
Vs
1. ANANDAM,W/O.PANAMPILLIKATTIL KUMARAN,
... Respondent
2. KUMARAN,S/O.KRISHNAN,PANAMPILLIKATTIL
For Petitioner :SRI.V.M.KRISHNAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/10/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.494 of 2010
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Dated this the 29th day of October, 2010.
JUDGMENT
Defendants in O.S.No.297 of 2004 challenge of Exts.P3 and P4, orders
on Exts.P1 and P2, applications passed by the learned Principal Munsiff,
Irinjalakkuda. Advocate Commissioner with the assistance of a Surveyor
submitted report and plan. The case was posted on 10.11.1999 for objection to
the report and plan submitted by the Advocate Commissioner. Going by orders
under challenge it was represented on that day that there is no objection to the
report and plan. The case was then posted for consideration of I.A.No.3615 of
2009 filed by the respondents for amendment of plaint and thereafter the case
was posted on 16.11.2009, 23.11.2009, 25.11.2009, 04.12.2009, 16.12.2009
and 21.12.2009 on which day case was posted for trial in the list on 05.01.2010.
The suit was dismissed for default on 05.01.2010 and restored on 27.09.2010.
Then the case was posted for trial in the list. It is then that petitioners filed
Exts.P1 and P2, applications to set aside report and plan submitted by the
Advocate Commissioner and to receive objections to that report. Those
applications were dismissed as belated. Learned counsel submitted that it was
because the suit was dismissed for default and restored only on 27.09.2010 that
Exts.P1 and P2, applications were not filed on time. But I stated that before
dismissal of the suit there was representation that there is no objection to the
report and plan. It is seen that inspite of granting several opportunities
OP(C) No.494/2010
2
petitioners did not choose to file any objection to the report and plan and seek
setting aside of the same. Applications at the fag end were not entertained.
There is no reason to interfere. However I make it clear that if ultimately the
suit is decided against the petitioners it will be open to them to challenge
correctness of the impugned orders in the appeal if they are otherwise entitled to
that course.
“Vigilantibus, non dormientibus, jura subveniunt (The laws assist those
who are vigilant, not those who sleep over their rights.)”
Petition is dismissed.
THOMAS P.JOSEPH,
Judge.
cks