IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1248 of 2010(O)
1. K.T.PRASAD, S/O.GOPALAN,
... Petitioner
Vs
1. K.R.T.A.TRUST, REP.BY MANAGING TRUSTEE,
... Respondent
For Petitioner :SRI.P.K.ABOOBACKER(EDAPPALLY)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/12/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P(Civil). NO. 1248 OF 2010
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Dated this the 21st day of December, 2010.
JUDGMENT
Defendant No.1 in O.S.No. 598 of 2007 of court of learned
Prl. Munsiff-II, Kozhikode is the petitioner in this proceeding,
challenging Ext.P5 order refusing to set aside the report
submitted by the Advocate Commissioner. Respondent sued
petitioner for a decree for prohibitory injunction against trespass
into suit property creating documents. Advocate
Commissioner identified the suit property with the assistance of
a surveyor submitted report and plan. Petitioner filed I.A No.2529
of 2010 to set aside that report contending that the report is
inadequate and that matters referred to in the work memo
submitted by petitioner has not been ascertained. Learned
Munsiff observed that report and plan were submitted in court on
12.11.2009, it was posted for objection on 21.01.2010, petitioner
did not prefer any objection and in spite of posting the case for
steps on 06.02.2010, petitioner did not take any steps. Petitioner
filed I.A No. 2529 of 2010 to set aside report and plan only on
19.06.2010 when the case was to be taken up for trial in the list
on 21.6.2010. Learned Munsiff observed that property has been
O.P(Civil). NO. 1248 OF 2010 2
identified by the Advocate Commissioner with the assistance of
the surveyor and that setting aside the report is not required.
Learned counsel contends that on the facts of the case report
ought to have been set aside.
I have referred to the circumstances under which petitioner
filed I.A.2529 of 2010. It is just before the case was to be taken
up for trial in the list that petitioner chose to file I.A 2529 of 2010.
Learned Munsiff has observed that petitioner can seek remittance
of the report at the time of trial if it is made out that the report is
inadequate or incorrect. Also since that remedy is available to
the petitioner, I do not find any reason to interfere. Petition is
dismissed.
THOMAS P. JOSEPH, JUDGE
mns
