JUDGMENT

This petition is filed by the petitioner challenging Ext.P4 order dismissing the application for appointing of a commissioner under Article 227 of the Constitution of India.

2. It is alleged in the petition that petitioner is a Government Higher Secondary School teacher since 6th August, 2007 and residing in Malappuram District. Respondents 1, 3, 4, 5 and 6 are the brothers of the petitioner and second respondent is the wife of the first respondent. Respondents 7 and 8 are sons of petitioner's deceased sister. Petitioner's father later Sukumaran settled 30 cents of property in favour of the petitioner as per settlement deed No.5942/01 and on the basis of the same, mutation was effected and he is paying tax in respect of the property. After marriage, first and second respondents started to prevent the petitioner and her husband from enjoying the property peacefully. So the petitioner filed Ext.P1 suit as O.S.No.45/2012 on the file of the Munsiff Court, Paravur of Kollam District for declaration of title and possession, fixation of boundary and other consequential reliefs. The evidence in this case was started and is over. Petitioner children were undergoing treatment for several diseases evidenced by Ext.P2 discharge summary and their counsel Sri.Raju Paravur, suffered a stroke and recently passed away and the case was being conducted by his junior advocate. When a fresh advocate was appointed or engaged to conduct the case on the death of their previous counsel, he advised them to take out a commission to fix the boundary without which the proper adjudication could not be possible. So they filed Ext.P3 application as I.A.1347/2015 for appointing a commissioner and with the help of the Village officer to identify the property and fix the boundary of the plaint schedule property. The third respondent filed Ext.P5 counter affidavit and the learned Munsiff dismissed the application vide Ext.P4 order. The petitioner was admitted in Matha Hospital for a surgery evidenced by Ext.P6 and the children also undergoing treatment evidenced by Ext.P7. The delay in taking out commission is not willful and without a commissioner being taken out in a case like this, proper adjudication will not be possible. So the petitioner has no other remedy except to approach this court, seeking the following reliefs:

(i) set aside Ext.P4 order and allow the Ext.P3 I.A.1347/2015 of the Munsiff Court, Pparavoor, Kollam.

(ii) grant such other further reliefs which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

3. Heard Sri.Shyam Kumar, counsel appearing for the petitioner and Sri.Vinay Varghese Kallukoottil, counsel appearing for the first respondent. Though others served did not appear.

4. The counsel for the petitioner submitted that in a suit for deceleration of title, possession and fixation of boundary, without the fixation of boundary, proper relief should not be granted and the delay in filing the application alone is not criteria for dismissing the application, if at all it has caused any inconvenience that could have been compensated by payment of cost. Even if the court feels that a commission is required, that can be done by the court suo motu in a case like this. So he prayed for allowing the application.

5. On the other hand, the counsel for the respondent submitted that it cannot be said that the petitioner was not aware of the consequence of their act. Even on earlier occasion, the the evidence was closed and an application has been filed to re-open the case to examine a witness, which was discussed and they they came to this court by filing O.P.(C) 3149/2015 and this court by order dated 22/12/2015 allowed the prayer with direction to the Munsiff to consider if proper application is filed and pass appropriate order, accordingly evidence was re-opened and witness was examined and thereafter they filed O.P.(C)788/2016 before this court other application for recalling the witness examined him was dismis