JUDGMENT

This is a petition filed by the petitioners challenging Ext.P5 order passed by the court below under Article 227 of the Constitution of India.

2. It is alleged in the petition that the petitioners as plaintiffs has filed OS.No.122/2012 before the Munsiff Court, Adoor for fixation of boundary and consequential reliefs. The defendant filed Ext.P2 written statement. Earlier an ex parte commission was taken out and the commissioner filed Ext.P3 commission report. Thereafter the petitioners filed Ext.P4 petition as IA.No.1806/2016 for appointing a commissioner with the help of surveyor to measure the property and fix the boundary and that petition was dismissed by the court below by Ext.P5 impugned order, which is under challenge.

3. Heard Sri.P.S. Nandanan, learned counsel appearing for the petitioners and Sri. D. Kishore, learned counsel appearing for the respondent.

4. Learned counsel for the petitioners submitted that it was due to a wrong advice given by the counsel that the steps could not be taken earlier. Further, the petitioners are poor persons and that was the reason why they could not take steps immediately. So without the commissioner’s report with the help of the surveyor, no purpose will be served by proceeding with the case.

5. Counsel for the respondent submitted that the suit was dismissed for default earlier and thereafter it was restored and only after PW1 was examined that the present petition has been filed. Considering the circumstances, it cannot be said that the court below was not justified in dismissing the application as there was deliberate laches on the part of the petitioners in not taking steps in time.

6. It is an admitted fact that the suit was filed by the plaintiffs who are the petitioners herein as OS.No.122/2012 before the Munsiff Court, Adoor for fixation of boundary of plaint 1 and 2 properties and also putting up boundary along with the common boundary and for injunction. The defendant filed Ext.P2 written statement denying the right of the plaintiffs and also submitted that the attempt of the plaintiffs is to grab the way and nothing more. It is seen from the documents produced that an ex parte commission was taken out and the commissioner had filed Ext.P3 report with a sketch plan showing the present status of the property. It is also in a way admitted that the case was once dismissed for default on 18.2.2014 and thereafter it was restored to file as per the order dated 29.6.2016. Thereafter the case was listed to 7.9.2016. It was at that time, a petition was filed to appoint a commissioner which was dismissed by the court below by the impugned order. It is true that there was laches on the part of the petitioners in not taking steps. But in a suit for fixation of boundary, without the commissioner's report, no relief can be granted. Even if there is laches on the part of the parties in not taking steps in time and that has caused any inconvenience to the other side, that could have been compensated by awarding reasonable cost. So under such circumstances, this court feels that in order to advance justice to both the parties to resolve the dispute in a proper manner, this court is of the view that an advocate commissioner has to be appointed with the help of the surveyor to identify the properties and fix the boundary of the plaint schedule properties with that of the defendant before proceeding with the case. But at the same time, laches on the part of the petitioners can be condoned only on payment of costs as the suit is of the year 2012 and it was dismissed once in 2014 and restored to file in 2016. So under such circumstances, this court feels that the petition can be disposed of as follows:

The order passed by the court below dismissing IA.No.1806/2016 in OS.No.122/2012 of Munsiff, Adoor is set aside and the same is allowed on condition that the petitioners shall pay a cost of Rs.2,000/-, out of which Rs.1,000/- be paid to the counsel for the respondent and the balance Rs.1,000/-