High Court Kerala High Court

N.P.Subhashini vs K.V.Sathyan on 16 December, 2008

Kerala High Court
N.P.Subhashini vs K.V.Sathyan on 16 December, 2008
       

  

  

 
 
  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