Simon vs Hari

C.Jayachandran, J

The petitioner herein is the plaintiff in O.S. No.117/2013 of the Munsiff Court, Thodupuzha. The petitioner seeks disposal of Ext.P7 application before commencement of the trial in the said suit, which was listed to 01.12.2023. The petitioner seeks a further relief to effect survey and demarcation of the property on the basis of Ext.P3 judgment of this Court.

Heard the learned counsel for the petitioner and the respondents.

Learned counsel for the petitioner submits that, based on the contention that a portion of the plaint schedule property is included in the title deed of the defendants, detailed directions were given to measure out the property of the petitioner/plaintiff and the respondents/ defendants, vide Ext.P3 judgment. The measurement directed vide Ext.P3 could not be conducted on account of the non co-operation of the respondents/defendants. It was also pointed out that against Ext.P3 judgment, a revision petition has been filed by the respondent herein, as R.P.No.120/2018. In the meantime, Ext.P6 order was passed, closing the petitioner's commission application for non-prosecution, which was also challenged before this Court in O.P.(C) No.768/2019. According to the learned counsel, without effecting measurement as directed in Ext.P3, the suit shall not be listed for trial. Such a course would defeat the very purpose of the suit, besides being in defiance of Ext.P3 judgment. On such premise, the reliefs first above referred are sought for. The above submissions were seriously opposed by the learned counsel for the respondents.

Having heard the learned counsel appearing on both sides, this Court is of the opinion that, except the first relief sought for, no further relief can be granted to the petitioner herein. This Court notice that the suit in question is of the year 2013 and that a commission application was preferred, as early as in 2015. Ext.P3 judgment is of the year 2016. The advocate commissioner filed an interim report vide Ext.P4, wherein, there is no reference, whatsoever, to the alleged non co-operation on the part of the respondents/ defendants. The fact remains that the measurement of a property, which is directed as far back as in 2016, is not yet executed, in which circumstances, this Court cannot find any illegality or infirmity with the learned Munsiff choosing to list the matter for trial. No order of stay in any of the proceedings, which are reportedly pending, is also brought to my notice. This Court therefore cannot issue any peremptory direction in respect of the second relief to measure out the scheduled property, now. This is all the more so, for another reason as well. The closure of the commission application vide Ext.P6 is directly under challenge in O.P(C) No.768/2019. Relief of this nature sought for, as relief no.2 ought to be obtained in that Original Petition, since the matter is directly in issue therein; and it is improper to interfere under Article 227 of the Constitution of India. However, the petitioner had not taken any steps to bring up those matters for being considered along with the present Original Petition. .In the circumstances, 2nd prayer sought for cannot be granted.

Coming to the first prayer, the petitioner seeks disposal of Ext.P7 application, which seeks time to take further steps in the case.

The said application is also having a direct bearing to O.P(C) No.768/2019 pending before this Court. Nevertheless, it will open for the learned Munsiff, Thodupuzha to consider and pass appropriate orders in Ext.P7 before the trial commences. There will be a direction to that effect.

With the above observations, this Original Petition will stand disposed of.