An application under Order XXVI, Rule 9 of the CPC must align with the issues in the suit; if deemed beyond scope, dismissal is warranted.

JUDGMENT

The original petition is filed challenging the order dated 14.2.2022 in IA No.3/2021 in OS No.280/2017 (Ext P6) of the Court of the Munsiff, Chengannur.

2. The skeletal facts, relevant for the determination of the original petition are: the petitioners are the additional plaintiffs 2 to 4 in the above suit, filed against the respondents, for a decree of permanent prohibitory injunction. The respondents have filed Ext P2 written statement denying the allegations in the plaint. The court below has passed Ext P3 ad-interim order of injunction. Subsequently, Ext P3 order was modified by Ext P4. The respondents have disputed the identity and extent of the property. Therefore, the petitioners had filed Ext P5 application under Order XXVI, Rule 9 of the Code of Civil Procedure , to depute an Advocate Commissioner to elucidate the matters mentioned in the application. The respondents have not opposed the application. Nonetheless, the court below, by the impugned Ext P6 order, has dismissed Ext P5 application. Ext P6 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.Arun Chandran, the learned counsel appearing for the petitioners and Sri.B.Renjithkumar, the learned counsel appearing for the respondents.

4. The point is whether there is any error or illegality in Ext P6 order.

5. On an analysis of the pleadings and materials on record, it is seen that the suit is filed for an injunction simplicitor to restrain the respondents from entering into a makeshift shed in the plaint schedule property, from demolishing the boundary marks of the plaint schedule property and from committing any waste therein.

6. At the instance of the petitioners, an Advocate Commissioner was appointed and a report is on record.

7. Now, the petitioners have filed Ext P5 application on the allegation that the respondents have attempted to trespass into the plaint schedule property on 2.9.2017 and 9.9.2017 and construct a compound wall by including certain portions of plaint schedule property. But, admittedly, the threat has not become a reality. It is to ascertain the above aspect that the petitioners have filed Ext P5 application to remit the commission report and elucidate the matters mentioned in the application that too with the assistance of a Surveyor.

8. Undisputedly, the petitioners have not filed an objection to the commission report, which is already on record or sought for the setting aside of the report. But, on the allegation that the respondents have attempted to trespass they want the commission report to be remitted.

9. The court below has rightly arrived at the conclusion that the present application is beyond the scope of the suit and, therefore, there is no necessity to remit the commission report and seek the assistance of a Surveyor. I do not find any error or illegality in Ext P6 order warranting interference by this Court in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed.

The court below is alerted that this Court has already by its judgment dated 26.7.2021 in OP (C) 1146/2021 directed the court below to dispose of the suit within a period of eight months. Hence, the court below shall adhere to the time frame fixed by this Court and dispose of the suit.

sks/16.8.2022 Sd/- C.S.DIAS, JUDGE APPENDIX OF OP(C) 467/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT DATED

12.09.2017 IN O.S. NO. 280 OF 2017 ON THE FILES OF THE HON’BLE COURT OF THE MUNSIFF CHENGANNUR.

Exhibit P2 TRUE COPY OF THE UNDATED WRITTEN STATEMENT FILED BY THE RESPONDENTS HEREIN.

Exhibit P3 TRUE COPY OF THE AD- INTERIM INJUNCTION DATED 15.09.2017 IN I.A. NO. 1395 OF

2017 IN O.S. NO. 280 OF 2017 ON THE FILES OF THE HONBLE COURT OF THE MUNSIFF CHENGANNUR.

Exhibit P4 TRUE COPY OF THE ORDER DATED 05.01.2022 IN I.A. NO. 1395 OF 2017 IN O.S. NO.

280 OF 2017 ON THE FILES OF THE HONBLE COURT OF THE MUNSIFF, CHENGANNUR.

Exhibit P5 TRUE COPY OF THE PETITION NUMBERED AS