KAVALAN Vs. MUKUNDAN

JUDGEMENT

(1.) The Revision Petitioner/first plaintiff challenges the order passed by the court below rejecting the request made by the petitioner to direct the commissioner to measure the property with the help of the surveyor and to complete the work entrusted with the Commissioner. Learned Counsel for the respondent raised a preliminary objection that all the defendants are not made parties to the application and therefore the application and the C.R.P. are liable to be dismissed on that short ground.

(2.) In the Civil Revision Petition, the first defendant is the sole respondent. The Revision is filed against the order in I.A. No. 632 of 2002. In the cause title in the application, the name of the first plaintiff is shown and thereafter it is shown as "and others" and they are shown as petitioners. The name of the first defendant is shown as respondent and thereafter it is stated "and others". Learned Counsel for the revision petitioner submits that all the defendants were made respondents in the application. In the certified copy of the order issued, the name of the first plaintiff and first defendant alone are shown as petitioner and respondent respectively. The application filed before the court below was evidently defective and it did not conform to ' 'The Registry of the court below should have returned the application as defective. Rule 39 of the Civil Rules of Practice provides that interlocutory applications in plaint, original petition, appeal or other proceedings shall have a cause title which may be drawn up in the manner as shown in Form No. 13. Relevant portion of Form No. 13 appended to the Civil Rules of Practice is as follows:

(3.) The court below dismissed the application on the ground that the revision petitioner/plaintiff did not co-operate with the Commissioner to complete the inspection. The submission made by the counsel on either side and the copies of the records placed before me would indicate that the Commissioner had submitted a report on 08-12-1999. Thereafter, another report dated 14-02-2002 was submitted by the commissioner after the second inspection. The commissioner inspected the property again as per the order in I.A. No. 2339 of 2000. The inspection was proposed to be held on 20-03-2003. On that date, the inspection did not take place. The inspection was made and measurement of the property was taken on another date. But the Commissioner could not locate the survey stones. Therefore, he proposed to conduct a further inspection on 17-05-2003. Inspection was made on 17-05-2003. Since the inspection could not be completed on that date, another date was fixed for further inspection. It is stated in the report that the advocate for the defendants at whose instance Commissioner was appointed, had put forward lame excuses and protracted the matter. In the first paragraph of the Commissioner's report also, it is stated that I.A. No. 2339 of 2000 was filed by the defendants and a commission was issued as requested by the defendants. In the report dated 08-11 -2003, the Commissioner stated that he is ready to complete the inspection and file the report and plan, provided both sides are prepared to co-operate.