IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

OP(C).No. 2506 of 2016 (O) ---------------------------

O.S.NO.262/1997 OF MUNSIFF COURT,ADOOR ---------------

PETITIONER/ADDITIONAL 4TH DEFENDANT.:

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PODIYAN,

AGED 60 YEARS, S/O. LATE SANKARAN AYYAN, EETTIVILA MELETHIL HOUSE, KALANJUR VILLAGE, KALANJUR MURI, ADOOR TALUK, PATHANAMTHITTA.

BY ADV. SRI.N.N.SASI

RESPONDENT/PLAINTIFF: ---------------------

OMANA, AGED 55 YEARS, CHARUVILAYIL HOUSE, KALANJOOR MURI (KANCHALLUR MURI) PATHANAPURAM, FROM KONNELAYYATHU, KALANJUR MURI, ADOOR TALUK, PATHANAMTHITTA.

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K.V.

OP(C).No. 2506 of 2016 (O)

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APPENDIX

PETITIONER(S)' EXHIBITS

EXT. P1	P1	TRUE COPY OF THE JUDGMENT IN O.P.C. NO. 2024/14 OF
		THIS COURT DATED 10.3.16.
EXT. P2	P2	TRUE COPY OF THE COMMISSION REPORT OF MUNSIFF COURT

• ADOOR.
• EXT. P3 TRUE COPY OF THE I.A. NO. 504/16 OF MUNSIFF COURT ADOOR.
• EXT. P4 TRUE COPY OF THE OBJECTION TO I.A.NO. 504/16 BY THE DEFENDANT.
• EXT. P5 TRUE COPY OF THE ORDER OF THE MUNSIFF IN I.A. NO. 504/16 DATED 7.4.16.

RESPONDENT(S)' EXHIBITS NIL -----------------------

/TRUE COPY/

P.A.TO JUDGE

K.V.

K.RAMAKRISHNAN, J. =================== O.P.(C).No.2506 of 2016 ======================= Dated this the 3rd day of November, 2016

JUDGMENT

This is an application filed by the petitioner challenging Ext.P5 order passed by the court below in I.A.No.504 of 2016 in O.S.No.262 of 1997 on the file of Munsiff's Court, Adoor, challenging the order of Munsiff changing the surveyor under Article 227 of the Constitution of India.

2. It is alleged in the petition that petitioner is the 4 th additional defendant and respondent is the plaintiff in O.S.No.262 of 1997 of Munsiff Court, Adoor. The suit was one filed for fixation of boundary and injunction. According to the defendant, plaintiff trespassed into their property and annexed certain portion into their property and filed a false suit. A commission was taken out and the commissioner with the help of a surveyor submitted a plan and report. The plaintiff filed I.A.No.213 of 2013 to set aside the commissioner's report and plan and that was dismissed by the court below, which was challenged by the plaintiff by filing O.P.(C). No.2024 of 2014 before this Court and this Court by Ext.P1 judgment dated 10.03.2016 allowed the petition in part and

directed the plan and report to be remitted to the commissioner to cure the defect noted in the judgment. It is thereafter that on the basis of Ext.P2, commissioner's report and plan was filed and the plaintiffs filed Ext.P3 application to set aside the commissioners report, the petitioner filed Ext.P4 objection to the same and the court below passed Ext.P5 order instead of setting aside the commissioner's report remitted the same to the commissioner and surveyor for conducting survey of the property as per order in O.P. (C).No.2024 of 2014 and the matter sought to be ascertained as per order in I.A.No.504 of 2015 and both the parties were permitted to submit work memo before the commissioner. It is thereafter, it appears that the court below had changed the surveyor and appointed a surveyor by name Shri.Basheer Khan as consented by both the parties.According to the petitioner, the counsel has not consented for the same and appointment of the fresh surveyor without setting aside the earlier survey report is not proper. So the petitioner challenged the order dated 29.7.2016 changing the surveyor by filing this petition.

2. Though notice was served on the respondent, she did not appear.

3. Considering the nature of things mentioned in the

petition, this court has called for a report regarding the circumstances under which a new surveyor has been appointed by the court below. Accordingly the munsiff has sent a report which reads as follows:

" With reference to the above, I may most humbly and respectfully submit before your goodself that as per the order of the Hon'ble High Court the report and plan was remitted back to the Commissioner. On 29.1.2016 when the case was posted for filing the commission report, the Advocate Commissioner has submitted that she could not execute the Order with the present Surveyor and she filed memo for changing the surveyor in the case. Counsel for plaintiff also submitted that the present surveyor may be changed as she is unable to prepare a correct plan even after several visits and he has suggested the name of another surveyor also and I have enquired the counsel for defendants also regarding any objections to the change of surveyor as per the memo filed by the advocate commissioner and he submitted no objections in changing the surveyor but he suggested the name of another surveyor. As both counsels suggested the names of two different surveyors, I have asked them to give the name of surveyor who is acceptable for both the parties and accordingly they have unanimously suggested the name of Sri. Basheerkahn. Advocate Commissioner also raised no objections in respect of his appointment as the surveyor in the case. Hence as suggested by both parties and as per the memo filed by the Advocate Commissioner for changing the earlier surveyor in the case as she is unable to prepare the plan correctly, according to them, I have appointed a new surveyor, to get the plan without any further defects and delay at the earliest being a

very old case. I may most humbly submit that while appointing the new Surveyor I have no other interest except to appoint a surveyor whose name is suggested and accepted by all the counsels for getting a correct plan at the earliest being a very old case. I may further most humbly request before your good self that if there is any mistake on my pat in changing the earlier surveyor and in appointing the new surveyor for the reasons stated above, I may most humbly request the pardon of your good self and I may further request that I may be excused for the time being and I shall change the name of the surveyor, if so directed by that Hon'ble Court."

4. Heard Sri.N.N. Sasi, learned counsel appearing for the petitioner. Learned counsel for the petitioner submitted that the counsel was not present in court at the time when the order was passed and so no consent was given by the counsel for the appointment.

5. It is seen from the report that the commissioner has filed a memo stating that it is not possible to proceed with the work with the then appointed surveyor. It is on that basis, an enquiry was conducted on the memo and it is noted that both the counsel submitted that they have no objection for the same. It is on that basis the court below directed the parties to submit a surveyor who is agreeable for both. Accordingly, the name of Sri. Basheerkhan was mentioned and both the counsel as well as the advocate commissioner has no objection in appointing that

OPC 2506/16 5

surveyor. It is on that basis, the present surveyor has been appointed by the court below to assist the commissioner to submit fresh report on the basis of the order evidenced by Ext.P5. It is seen from the report that it is a consent order passed. The remedy of the petitioner if consent is not given as submitted by the counsel for the petitioner to file an application to review the order and not to approach this court under Article 227 of the Constitution of India. So the petition is disposed of follows:

If the petitioner files an application for reviewing the order dated 29.7.2016 appointing a new surveyor, then the court below is directed to consider that application and pass appropriate orders within a period of two weeks of filing of that application in accordance with law. Till then, the order dated 29.7.2016 is directed to be kept in abeyance. The petitioner is also directed to file an application for this purpose within a week from today and the petition shall be directed to be disposed of within two weeks from the date of filing of the petition. If the petitioner did not file an application for review as directed, then the court below shall proceed with the order passed and get the commissioner's report and dispose of the case at the earliest as the suit is of the year 1997.

With the above directions and observations this petition is

OPC 2506/16 6

disposed of. Registry is directed to communicate this judgment to the court below immediately by phone followed by Fax.

Sd/-

K. RAMAKRISHNAN, JUDGE.

cl