J U D G M E N T

The original petition is filed to set aside the order in I.A.No.4/2021 in O.S.No.412/2016(Ext.P12) passed by the Court of the Munsiff, Kuthuparamba.

2. The petitioner’s case, in the nutshell, in the memorandum of the original petition, is that; he is the plaintiff in the above court filed against the respondents. The petitioner has sought for a decree of permanent prohibitory injunction against the respondents from trespassing into the plaint scheduled property. The suit has been resisted by the respondents, who have filed Ext.P2 written statement. Pursuant to Ext.P3 application filed by the petitioner, an Advocate Commissioner was appointed and Ext.P4 commission report is on record. In the meantime, the first respondent has filed O.S.No.353/2016(Ext.P5) before the same court, against the petitioner, also seeking a decree of permanent prohibitory injunction. The petitioner has filed Ext.P6 written statement to Ext.P5. Exts.P1 and P5 suits are being consolidated and being jointly tried. The respondents have filed Exts.P7 in Ext.P5, seeking leave to amend the pleadings. Even though the petitioner had filed Ext.P8 counter affidavit, the court below granted leave to amend the plaint. Thereafter, the petitioner filed Ext.P9 additional written statement in the suit. The respondents have disputed the identify of the plaint scheduled property. They have categorically pleaded in Ext.P2 written statement that, the property described in Ext.P1 suit is not in the possession of the petitioner. Hence, the petitioner had filed Ext.P10 application, to remit the commission report and conduct a fresh inspection. The application was resisted by the respondents by filing Ext.P11 counter affidavit. The court below, without appreciating the pleadings and materials on record, dismissed the same by Ext.P12 order. Ext.P12 order is erroneous and wrong. Hence, the original petition.

3. Heard; Sri. S.Sidhardhan, the learned counsel appearing for the petitioner and Smt. Bindumol Joseph, the learned counsel appearing for the respondents.

4. The sole point that arises for consideration in this original petition is whether there is any illegality or error in Ext.P12 order passed by the court below?.

5. The learned counsel appearing for the petitioner argued that the finding of the court below in Ext.P12 order, that there was inordinate delay on the part of the petitioner in filing Ext.P10 application is wrong and misleading. Ext.P13 certified copy of the ‘B’ diary proceedings would establish that there was no sitting in the court below from 13.03.2018. It is only in the above factual background that the application was not filed earlier.

6. The learned counsel appearing for the respondents opposed the above prayer and submitted that there was inordinate delay and latches on the side of the petitioner in seeking for remission of commission report. The petitioner could have, immediately after the filing of the written statement, filed the application for remitting the commission report. It is only at the fag end of the proceeding that the petitioner has sought for remission of the commission report. The sole intention of the petitioner is to protract the determination of the suits. Hence, the original petition may be dismissed. 7. On an appreciation of the pleadings and materials on record, it can be gathered that the petitioner as well as the first respondent have filed Exts.P1 and P5 suits, seeking decrees for permanent prohibitory injunction. The specific stand of the respondents in Ext.P2 written statement is that the plaint scheduled property is not in the possession of the petitioner. They have also disputed the identity of the property.

8. In the light of the specific contention of the respondents, the petitioner sought for remission of the commission report to identify the property in question. The court below has, without adverting to the assertions in Exts.P10 application and P11 written objection, dismissed Ext.P10 on the sole ground of