Saramma And Ors @APPELLANT@Hash Jacob And Anr

The prayer in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as follows:

'this Hon'ble Court may be pleased to stay further proceedings in O.S.No.40/2016 of the Munsiff Court, Changanassery to enable the petitioners to obtain certified copy of the order dated 28.02.2018 in Ext.p2 application, so as to challenge the same in the appropriate forum, pending disposal of this petition.'

Heard Sri.K.Shaj, learned counsel for the petitioners/plaintiffs. In the nature of the orders proposed to be passed in this petition, notice to the respondents will stand dispensed with.

The petitioners herein are the plaintiffs in O.S.No.40 of 2016 on the file of the Munsiff Court, Changanassery wherein the respondents herein have been arrayed as defendants therein. The suit is one for the decree for permanent prohibitory injunction to restrain the defendants and their henchmen from trespassing into the plaint schedule property and to restrain them from destroying the boundaries and from trespassing into the plaint schedule 3 pathway and from altering it. A commission was taken out in the case and a report was also filed in the court below and the said report specifically described the boundaries of the plaint schedule properties and then there was no necessity for the petitioners to take out a survey commission. The case was taken for trial. During the course of trial, the respondents produced a resurvey plan and sketch which does not tally with the existing boundaries. In such circumstances, the petitioners were constrained to file Ext.P2 application, which has now been dismissed by order dated 28.02.2018 rendered by the said trial court. The case is now posted to today viz. 01.03.2018, for final hearing, that the petitioners are applied for the grant of a certified copy of the order dated 28.02.2018, in which they have to impugn in appropriate proceedings. The limited prayer sought for by the petitioners is that this Court may direct the Munsiff Court, Changanassery to immediately furnish a certified copy of order dated 28.02.2018 whereby the prayer in Ext.P2 I.A. has been dismissed, so as to enable the petitioners to work out their remedies to challenge the said order in appropriate proceedings and that petitioners need be given a breathing time to challenge the said order in Ext.P2 application in the manner known to law and hasty steps to be taken to complete the final hearing in the suit would result the denial of justice to the petitioners. The petitioners earlier were not seek for a survey commission as the report, of the commission taken out in the case, was fully in favour of the averments and prayers in the plaint. It is only during the trial, the respondents/defendants placed reliance on a resurvey plan and sketch, which does not having the existing boundaries in which case the petitioners being the dominus litis, is entitled to rebut it in the manner known to law, fairness and natural justice demand that they should be given a reasonable opportunity to take out a survey commission so as to rebut the resurvey plan sought to be now projected by the respondents/defendants.

In the light of the aforesaid facts and circumstances, it is ordered, in the interest of justice that the Munsiff Court, Changanassery will take immediate steps to grant certified copy of the order dated 28.02.2018 passed by that court on Ext.P2 application within 3 to 5 days without any further delay, at any rate within 3 days from the date of receipt of a copy of this judgment, in case the said application is in order. If there is any defect in that application, then the trial court should permit the petitioners to cure such defect and the certified copy should be made available within 3 days from the date of curing of such defects, if any. In order to enable the petitioners to secure breathing time to take steps to workout their remedies in accordance with law, it is ordered that further proceedings in O.S.No.40/2016 on the file of the Munsiff Court, Changanassery will stand deferred for a period of three weeks. This order has been passed only for the limited purpose of preservation of the subject matter of the lis in order to enable the petitioners to workout their remedies in accordance with law. The petitioners will produce a certified copy of this judgment before the trial court concerned, for necessary information.

With these observations and directions, this original petition (Civil) stands finally disposed of.