IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 WP(C).No. 33008 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 360/2009 IN OS.74/2008 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONER(S): --------------- POULOSE,S/O. PATHROSE, AGED 49 YEARS, KARAVATTE KUZHIVELIL, HOSUE, PANGODE KARA, IKARANADU NORTH VILLAGE. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): --------------- 1. MARIYAMMA, W/O. KODIYARIL VARKEY, IKARANAD NORTH VILLAGE, PANGODE KARA. 2. K.V.CHINNAMMA @ ALICE,W/O.MATHEW PETER, HOUSE NO.1/729, KUTTIKATTUKARA, ELOOR, UDYOGAMANDAL,THRIKKAKARA VILLAGE. 3. SABU, S/O. KODIYARIL VARKEY IKARANAD NORTH VILLAGE, PANGODE KARA. 4. RUBY W/O. DAVID, MAZHUVANCHERIPARAMBATH, NADAMA VILLAGE, TRIPUNITHURA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.33008/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF O.S.NO.74 OF 2008 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KOLENCHERRY. EXT.P2: COPY OF THE ROUGH SKETCH SUBMITTED BY THE COMMISSIONER ALONG WITH THE COMMISSION REPORT. EXT.P3: COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE COMMISSION REPORT. EXT.P4: COPY OF THE APPLICATION I.A.NO.360 OF 2009 FILED BY THE PETITIONER FOR APPOINTMENT OF A COMMISSION ALONG WITH THE SURVEYOR. EXT.P5: COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT, KOLENCHERRY DISMISSING EXT.P4. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.33008 OF 2009 (O) ----------------------------------- Dated this the 4th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to issue appropriate orders setting aside Ext.P5. ii. to issue appropriate directions to the learned Munsiff, Kolencherry to allow Ext.P4, I.A.No.360 of 2009 in O.S.No.74 of 2008 submitted by the petitioner for appointment of a surveyor along with Advocate Commissioner to measure out A, B and C Schedule properties in O.S.No.74 of 2008. 2. Petitioner is the plaintiff in O.S.No.74 on the file of the Munsiff Court, Kolencherry. Suit is one for perpetual prohibitory injunction and the respondents are the defendants. Challenge raised in the writ petition is against Ext.P5 order WPC.33008/09 2 passed by the learned Munsiff dismissing an application moved by the petitioner/plaintiff for appointment of a commission to measure out the plaint property with the assistance of a surveyor. 3. I heard the counsel on both sides. Ext.P5 is the copy of the order passed by the learned Munsiff dismissing the commission application moved by the petitioner/plaintiff. Previously, a commission had been deputed on the application moved by the petitioner/plaintiff and the present application was filed belatedly at the stage when the suit had been included in the special list for trial were the reasons which prompted the learned Munsiff to dismiss the subsequent application. The dispute involved in the suit relate to the right claimed by the plaintiff over a pathway which has been disputed by the defendants. I find that the previous report and plan collected was at the stage before the defendants filed their written statement. The earlier report was based on the features noticed at the site on local inspection, and it was presented with a rough sketch prepared by the Commissioner. WPC.33008/09 3 The defendants in their written statement have disputed the identity and description of the plaint property and also the existence of a pathway over which right of enjoyment has been claimed by the plaintiff. When that be so, without proper identification of the suit property and also demarcation of the pathway, no relief of injunction can be granted to the plaintiff even if it is established that he is entitled to the relief canvassed in the suit. So much so, the commission application moved by the plaintiff deserved to be considered favourably for a proper adjudication of the disputes involved to have a fair disposal of the suit. At the same time, it has to be noticed that the application was moved by the plaintiff at a belated stage, that is, two weeks prior to the date fixed for the commencement of the trial. Whatever be the explanation offered by the plaintiff for the delay in moving the application, in the given facts of the case, I find, his application for appointment of a commission, which has been filed belatedly, can be entertained only on terms compensating the injury likely to be suffered by the respondents/defendants. So much so, there will be a direction to the petitioner/plaintiff to pay a WPC.33008/09 4 sum of Rs.1,500/- (Rupees thousand five hundred only) to the respondents/defendants as cost as a condition precedent for considering their commission application which had been moved belatedly. Cost ordered as above shall be paid to the counsel appearing for the respondents before this Court within fifteen days from the date of this judgment and a memo evidencing such payment shall be filed on or before 22.1.2010. In default of the payment of cost ordered, the writ petition shall stand dismissed without any further orders. If cost is paid as directed, Ext.P5 order shall stand set aside and the court below shall depute a commission to ascertain the matters sought for by the petitioner/plaintiff. Writ petition is accordingly disposed. Post for compliance report after three weeks. S.S.SATHEESACHANDRAN JUDGE prp