K.E Devassia vs G. Prasadanchandran Pillai

C.S.Dias, J

The original petition is filed challenging Ext.P5 order passed in I.A No.2/2022 in O.S. 424/2014 by the Court of the Additional Munsiff, Alappuzha. The petitioner are the plaintiffs and the respondents are the defendants in the suit.

The relevant background facts leading to Ext.P5 order are:

(i) The petitioners have filed the suit for a decree of permanent prohibitory injunction.

(ii) The suit was resisted by the respondents through Ext.P2 written statement with a counter-claim.

(iii) The petitioners have filed Ext.P3 written statement to the counter claim.

(iv) The petitioners have filed I.A No.2/2022 to appoint a survey commission, to measure out and demarcate Item No.3 properties.

(v) The court below, by the impugned Ext.P5 order, has dismissed Ext.P4 application.

(vi). Ext.P5 is ex-facie illegal and unsustainable in law. Hence the original petition.

Heard; Sri.Philip T.Varghese, the learned counsel appearing for the petitioners,on admission.

The sole point is whether there is any illegality in Ext.P5 order?

Undisputedly, the plaint is filed for a decree of injunction.

In Madhavan v. Narayanankutty and others [2019 (4) KHC 854], this Court has arrived categorically held that in a suit for injunction simplicitor, there is no necessity to have a survey commission.

The court below, taking into account the pleadings and materials on record, has arrived at a conclusion that there is no valid reason or ground made out in Ext.P4 application to have a survey commission.

I do not find any error or illegality in Ext.P5 order warranting interference by this Court under Article 227 of the Constitution of India. It is to be remembered that the suit is of the year 2014. It is only at the fag end of the proceedings that the petitioners have made an attempt to make out a survey commission. I do not find any merits in Ext.P4 application.

The original petition fails and is consequentially dismissed.