IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 OP(C).No. 1178 of 2010(O) AGAINST THE ORDER DATED 06/12/2010 IN I.A.NO.1028/2010 AND IA.1073/2010 IN OS.85/2010 OF MUNSIFF'S COURT, KALPETTA PETITIONER/PETITIONER/PLAINTIFF --------------------------------------------------- RAJAGIRI RUBBER & PRODUCE COMPANY LTD., REPRESENTED BY ITS DIRECTOR, R.VENUGOPALAN, CHULIKA ESTATE, MEPADI.P.O., KOTTAPPADI VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.BENNY P. THOMAS SRI.P.GOPINATH MENON SRI.JOSON MANAVALAN RESPONDENT: COUNTER PETITIONER/DEFENDENT ------------------------------------------- MOIDEENKUTTY, AGED ABOUT 53 YEARS, MADATHODI MANZIL, NEAR CHULIKA L.P.SCHOOL, MEPPADI.P.O., KOTTAPPADI VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. PIN-673 577. BY ADV. SMT.CELINE JOSEPH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KALPETTA AS O.S.NO.85 OF 2010 ON 4.3.2010. EX.P2 TRUE COPY OF COMMISSION REPORT DATED 14.3.2010 ALONG WITH THE SKETCHES FILED IN EXT.P1 SUIT (WRONGLY TYPED AS 12.3.09). EXT.P3 TRUE COPY OF WRITTEN STATEMENT DATED 2.7.2010 FILED BY RESPONDENT IN O.S.NO.85 OF 2010. EXT.P4 TRUE COPY OF I.A.NO.1028 OF 2010 FILED BY THE PETITIONER IN O.S.NO.85 OF 2010, DATED 22.11.2010. EXT.P5 TRUE COPY OF COUNTER STATEMENT DATED 4.12.2010 FILED BY THE RESPONDENT IN I.A.NO.1028 OF 2010 IN O.S.NO.85 OF 2010. EXT.P6 TRUE COPY OF I.A.NO.1073 OF 2010 FILED BY THE PETITIONER IN O.S.NO.85 OF 2010 DATED 26.11.2010. EXT.P7 TRUE COPY OF ORDER DATED 6.12.2010 PASSED BY THE MUNSIFF'S COURT, KALPETTA IN I.A.NO.1028 OF 2010 IN O.S.NO.85 OF 2010. EXT.P8 TRUE COPY OF ORDER DATED 6.12.2010 PASSED BY THE MUNSIFF'S COURT, KALPETTA IN I.A.NO.1073 OF 2010 IN O.S.NO.85 OF 2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1178 OF 2010 O ------------------------------------------------------ Dated this the 14th day of January, 2011 JUDGMENT The petitioner, the plaintiff in O.S.No.85 of 2010 on the file of the Court of the Munsiff of Kalpetta, filed I.A.No.1028 of 2010 to remit the Commissioner's report. The respondent filed a counter statement dated 4.12.2010, wherein in paragraph 3 it was stated that if the Court was pleased to remit the Advocate Commissioner's report, the defendant may be permitted to submit a work memo and the Commissioner may be directed to consider the matters mentioned in the work memo. The suit was listed for trial and, therefore, the petitioner filed I.A.No.1073 of 2010 to remove the case from the list. The court below dismissed the application for remitting the Commissioner's report and also the application for removing the case from the list. Those orders are under challenge in this Writ Petition. 2. It is pointed out that in the light of the pleadings and also in view of the fact that the Commissioner has not measured the width of the pathway, it is necessary to remit the Commissioner's report. The respondent/defendant had no objection before the court below O.P.(C) NO.1178 OF 2010 :: 2 :: for remitting the Commissioner's report. The defendant stated that he also should be given an opportunity to file a work memo so that the Commissioner could report those matters as well. 3. The court below dismissed the application for remitting the Commissioner's report on the ground that the width of the pathway is not mentioned in the plaint and that the dispute does not relate to the pathway. The counsel for the petitioner submitted with reference to the averments in the plaint that there is such a pleading. In the plaint it is stated thus: “The plaintiff has no objection in defendant using the footpath but he has no right to use the road or cause any hindrance to the plaintiff in locking the gate. The defendant has no right whatsoever over the plaint schedule property.” The counsel submitted that the defendant stated in the written statement that the pathway is having a width of only eight feet. The Commissioner has stated that the width of the pathway is approximately four feet. In view of the fact situation and also in view of the fact that the defendant has no objection for remitting the O.P.(C) NO.1178 OF 2010 :: 3 :: Commissioner's report and also taking into account the fact that the suit is of the year 2010, I am inclined to allow I.A.No.1028 of 2010. Accordingly, the order dated 6.12.2010 in I.A.No.1028 of 2010 is set aside and the Interlocutory Application is allowed. The Commissioner's report is remitted to the same Commissioner. The Commissioner shall inspect the property with reference to the matters mentioned in the application for remittance. The defendant would be entitled to file a work memo before the Commissioner with copy to the plaintiff. The Commissioner shall take into account the matters mentioned in the work memo as well and submit a report. 4. In view of the fact that the order in O.A.NO.1028 of 2010 is set aside, necessarily the suit has to be removed from the list. It is not necessary to pass any specific order in I.A.No.1073 of 2010. The Original Petition is allowed as above. (K.T.SANKARAN) Judge ahz/