It is indeed cruel to accuse the petitioner for having filed the delayed petition with the intention of getting it removed from the list. The facts show otherwise.
2. In the suit, the plaintiff sought for issuance of a Commission. A Commission was issued and Ext.P2 report was filed. Query No.6 was answered as follows:
“6) To ascertain whether plaint property and the property covered under Simple Mortgage deed No. 695/1977 of Mararikulam SRO and the property stated in the Page No.2 of the Sale deed No. 4109/1978 of Maririkulam SRO are one and the same.
¥ÈcÞÏÉGßµÕØñáÕá¢, Mortgage deed çÜÏá¢, ÕØñáÕßæa ØVçÕîÈOùáµZ ²Ká¢, ®KÞW ¿ß_ÕØñáAZ ²KÞçÃÞ ®Kí µÝßÏÞJÄÞµáKá.”
3. In the light of the said observation made by the Commissioner, the petitioner was constrained to move Ext.P3 application seeking further measurement of property with the help of a Taluk Surveyor. That petition was filed as early as on 28.09.2012. That was kept pending by the court below and when the suit was included in the list, the petitioner pointed out that the above application is pending and without considering the above aspect, it will not be appropriate to go for trial. The court below observing that the application had been filed to drag on the proceedings, simply dismissed the interlocutory application.
4. On fails to understand how the court could have come to the conclusion that it was with the intention of protracting the matter that the petition was filed. It must be remembered that it was filed as early as on 28.09.2012. Of course it would have been filed earlier than that. But, the petitioner had taken diligent steps to see that the lacuna pointed out by the Commissioner is rectified and he therefore sought issuance of a Commission with the help of a Surveyor for identification of the property which seems to be in dispute in the suit. The suit was listed to 02.07.2014.
5. The petitioner pointed out that his apprehension that it was being posted from time to time and no orders have been passed on that petition and that unless and until that petition is disposed of, it may not be appropriate to try the case.
6. The above submission of the plaintiff seems to be quite appropriate in view of the observations made by the Commissioner which has already been referred to. By no stretch of imagination it could be said that I.A.No. 2709/2012 was filed with the intention of protracting the matter. It must be remembered that the suit was listed for trial only on 02.07.2014 and during the period from 2012 to 2014, petition was lying idle without orders being passed on the same.
7. The learned counsel appearing for the respondent tried to point out that there is no necessity for survey commission. It does not appear to be so in the light of the contention raised by the defendant and the issues that appears to have been raised for consideration. There appears to be some dispute regarding the actual identity of the property.
8. The learned counsel appearing for the petitioner pointed out that the dispute seems to be that according to the defence, the property in his possession is not the property covered by the mortgage deed based on which the defendant claims the property. If that be so, there is identity dispute and it was necessary for the Commissioner to properly identify the property. Under these circumstances, it is difficult to sustain the order of the court below.
This petition is allowed and the impugned order is set aside. I.A.No.2709/2012 stands allowed. Consequent appropriate orders will be passed by the court below appointing a Commission and Surveyor and the Commissioner shall file his report within a period of four months from the date of order of issuance of a Commission by the court below. Commission batta and survey expenses shall be fixed by the court below.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE