IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 19696 of 2009(O) -------------------------- OS.472/2008 of ADDL.MUNSIFF COURT I,KOZHIKODE. .................... PETITIONER(S): DEFENDANTS: ------------------------------------------------ 1. MULLAMBALATH ABDUL GAFOOR, S/O.UMMAR, KODUVALLY AMSOM, DESOM, KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER POOMULLANKANDI MOYIN, AGED 50 YEARS, S/O.KUNHOTHEENKUTTY, KODUVALLY AMSOM, DESOM, KOZHIKODE TALUK. 2. MULLAMBALATH AYISHA, W/O.UMMER, KODUVALLY AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. MR.K.M.FIROZ RESPONDENT(S): PLAINTIFF: -------------------------------------------- MULLAMBALATH HAMSA, S/O.ATHRUMANKUTTY, PERAKUTTIYIL HOUSE, KODUVALLY AMSOM, DESOM, KOZHIKODE TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 19696 OF 2009 O ```````````````````````````````````````````````````` Dated this the 14th day of July, 2009 J U D G M E N T The writ petition is field by the defendant in OS.No.472/08 on the file of the Additional Munsiff Court-I, Kozhikode. Respondent is the plaintiff in the suit. Suit is one for injunction. An Advocate Commissioner appointed by the court conducted a local inspection and filed a report and plan. Grievance canvassed by the petitioner is that at the time when the Commissioner conducted inspection and prepared the report and plan, he was abroad and later on his return, after going through the report and plan, he found it was against the actual state of affairs present at the site where the subject matter of the suit is situated. The plaintiff claimed a right of way through his property, which according to the defendant, is non existent and there is an alternate way outside his property. The Commissioner has not noted the alternate way and has further falsely reported of a way through his property, is the case of the petitioner. He moved an application for setting aside the report and plan and, in the enquiry WPC.19696/09 : 2 : of which the Advocate Commissioner was examined and some photographs were also exhibited. The learned Munsiff, after considering the materials produced and hearing the counsel on both sides, turned down the request of the petitioner for remitting the report prepared by the Commissioner. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and perusing Ext.P6 order passed by the court below impugned in the writ petition, I find no notice to the respondent is necessary and it is dispensed with. Copy of the report and plan prepared by the Commissioner have been produced as Exts.P3 and P3(a) respectively. Perusing Ext.P3(a), I find it is only a rough sketch. That being so, if any dispute is involved in the suit with respect to the identification of the pathway in respect of which reliefs are sought for, needless to point out such identification has to be made. Suit being one for injunction and that too in respect of a pathway before granting a decree the pathway with all necessary particulars has to be identified. A rough sketch showing a pathway is not sufficient to grant a decree of injunction. So much so, the order passed by the WPC.19696/09 : 3 : learned Munsiff turning down the request of the petitioner/ defendant to remit the Commissioner's report and the rough sketch prepared by him may not be of much significance now, provided steps are taken for identifying the pathway. Having regard to the disputes arising for adjudication, if any application is moved by the plaintiff or the defendant for identification of the pathway and its measurement, through the Advocate Commissioner, the court below has to consider that with reference to the issues settled in the suit. The accepted rule that without setting aside a Commission report and plan, a second Commission cannot be appointed as covered by the decision in Swami Premananda Bharathi Vs. Swami Yogananda Bharathi [1985 KLT 144] will not stand in the way of having a second Commission where it is for measuring of and identifying the suit property when the earlier one was only for determination of some other aspects and that too carried out only by preparing a rough sketch with a report. I make it clear that Ext.P6 order passed by the learned Munsiff will not stand in the way of the plaintiff or defendant in moving an application for appointment of a WPC.19696/09 : 4 : Commission, preferably by the same Commissioner, for identification and measurement of the B schedule pathway claimed, which according to the defendant, is nonexistent. Subject to the above observations, the writ petition is closed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge