In injunction suits, the appointment of a survey commission is not compulsory unless justified by specific circumstances of the case.

JUDGMENT

Confronted with Ext.P6 order passed in I.A.No.3/2022 in O.S.No.207/2014 by the Court of the Munsiff, Chengannur, the defendant in the suit has filed the original petition. The respondent is the plaintiff in the suit.

2. The skeletal facts leading to Ext.P6 order are: the respondent has filed the above suit against the petitioner for a decree of permanent prohibitory injunction. The petitioner has resisted the suit through Ext.P2 written statement. While so, the respondent filed I.A.No.2/2022 (Ext.P4) to appoint an advocate commissioner to be assisted by a surveyor. The petitioner also filed I.A.No.3/2022 (Ext.P5) for the very same relief and sought for certain additional matters to be elucidated. The court below, by the impugned Ext.P6 order, has only partly allowed Ext.P5 application. Ext.P6 order is palpably wrong and unsustainable in law. Hence, the original petition.

3. Heard, Sri.K.N.Radhakrishnan, the learned counsel appearing for the petitioner on admission.

4. The short point is, whether there is any illegality in Ext.P6 order.

5. The suit has been filed by the respondent for a decree of permanent prohibitory injunction. The same has been resisted by the respondent through Ext.P2 written statement.

6. The petitioner’s case is that there is suppression of material facts in the plaint. There is no pathway as alleged in the plaint. In fact, the total extent of 74 cents of land originally belonged to the grandfather of the petitioner and the respondent, named Sankaran. The respondent’s father got 5 cents of land by a partition deed. In the said deed, there is a pathway having a width of 3 feet set apart on the northern portion of 74 cents of land. The petitioner has also got other properties by virtue of the very same partition deed. Some of the shareholders have transferred their shares. The respondent has two roads to his property.

7. In the aforesaid factual background, after the respondent filed Ext.P4, the petitioner filed Ext.P5 application for the same relief. But, the court below, by the impugned Ext.P6 common order, allowed the application filed by the respondent and only partly allowed the petitioner’s application by observing as follows:

“5. Both IAs are filed to survey the properties based on resurvey plan and title deeds. In this case already there is a commission report and the commissioner filed only a rough sketch. Hence the prayer to survey the properties based on the resurvey plan and the title deeds can be allowed.

6. In IA.3/22, the defendant sought to ascertain the properties not scheduled in this case. On considering the nature of the suit and the allegations levelled by both the parties, there is no need to measure out the adjacent properties not scheduled in this case. The matters sought to be ascertained in IA.3/22 as Nos.2 to 13, 20 and 21 will not serve any purpose to this case. Moreover, it will further complicate the case also. If IA.3/22 is allowed as sought for, it will cause hardship to the defendant and the adjacent property owners. Hence IA.3/22 is only liable to be partly allowed.”

8. On an appreciation of Exts.P4 and P5 applications and the impugned Ext.P6 order passed by the court below, I am definitely of the view that the petitioner cannot aspire to get the adjacent properties surveyed through a survey commission in a simple suit for injunction.

9. InMadhavan v. Narayanankutti and others [ 2019 (4) KHC 854 ] this Court has succinctly held that in a suit for injunction simpliciter, there is no necessity to have a survey commission.

10. Be that as it may, as the court below has already appointed an advocate commission to be assisted by a surveyor, I am of the view that, after the commission report and sketch are filed, if the petitioner has any grievance with regard to the same, the petitioner would be at liberty to file his objections to the report and seek for remission of the report. If such an application is filed, the court below may, in its wisdom and discretion, for the proper dete