VAVACHAN Vs. SASI

JUDGEMENT

(1.) The plaintiff in a suit for perpetual prohibitory injunction in relation to an item of immovable property as claimed by him is the petitioner in this petition under Article 227 of the Constitution of India.

(2.) Heard the learned counsel for the petitioner and the learned counsel for the respondent/defendant.

(3.) During the course of the suit, the plaintiff filed I.A. No. 4243 of 2009 for survey and measurement of the property. The commissioner appointed in terms of the order in that interlocutory application later on reported to the court that he is unable to execute the commission in view of the fact that survey plan is not available. The plaintiff was directed to have the survey plan produced. It appears that he took certain steps. Later on, since the survey plan was not produced, the trial court dismissed the commission application and also dismissed the suit for default. Later on, the plaintiff filed an application for restoration of the suit along with an application seeking condonation of delay of 304 days in applying to restore the suit to file. The trial court did not accept the version of the plaintiff that he was undergoing treatment and that he was incapacitated owing to physical disabilities for prosecuting the suit by having the survey plan produced and also taking further steps. Accordingly, the trial court dismissed the application seeking condonation of delay and, consequentially, the application to restore the suit to file. The appellate court has confirmed that on the specious premise that the survey plan is not yet available with the plaintiff. It also did not find its way to hold that the decision of the trial court warranted interference in the appeal.