IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 6847 of 2010(O) ------------------------- IA NO.2042/2009 IN OS.207/2008 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- KANNAYADAN VEETTIL SATHYARAJ, AGED 42 YEARS, S/O.KUNHIKRISHNAN NAMBIAR, PERALAM, (P.O) KOZHUMMAL, (VIA.) PAYYANNUR. BY ADV. SRI.MAHESH V. RAMAKRISHNAN RESPONDENT(S): --------------- 1. E.KUNHIRAMAN, S/O.LATE RAMAN, ERIYALATH HOUSE, EDANAD OF KUNHIMANGALAM VILLAGE, P.O.EDANAD, POWER OF ATTORNEY HOLDER OF MATHRADAN, PUTHIRAKKAL SAJU. 2. M.V.BALAKRISHNAN, MAVILA VEETTIL, KADANAPPALLI, THEKKEKKARA, P.O.KADANNAPPALLI. ADV. SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6847/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE AMENDED PLAINT DATED NIL IN OS NO.207/2008 EXT.P2 TRUE COPY OF THE REPORT AND SKETCH DATED 3.1.2009 FILED BY THE ADVOCATE COMMISSIONER EXT.P3 TRUE COPY OF THE 2ND RESPORT DATED 16.2.2009 FILED BY THE ADVOCATE COMMISSIONER EXT.P4 TRUE COPY OF WRITTEN STATEMENT DATED 25.8.2009 FILED BY PETITIONER HEREIN IN OS 207/2008 EXT.P5 TRUE COPY OF THE AFFIDAVIT DATED 29.9.2009 FILED IN SUPPORT OF IA NO.1537/2009 EXT.P6 TRUE COPY OF THE AFFIDAVIT AND SKETCH PLAN DATED 8.12.2009 SUBMITTED IN SUPPORT OF IA NO.2042/2009 EXT.P7 TRUE COPY OF THE ORDER DATED 5.2.2000 OF THE LEARNED MUNSIFF IN IA NO.2042/2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.6847 of 2010 -------------------------------------- Dated this the 14th day of June, 2010. JUDGMENT Petitioner, supplemental defendant No.2 in O.S.No.207 of 2008 of the court of learned Munsiff, Payyannur seeks invocation of jurisdiction of this Court under Article 227 of the Constitution against Ext.P7, order refusing to remit the report and sketch produced by the Advocate Commissioner. Suit concerned right of respondent No.1/plaintiff to use the disputed plaint B schedule way for access to his plaint A schedule. Suit was originally filed against respondent No.2. While so, Advocate Commissioner submitted report and sketch which on the application of respondent No.2 was remitted and there was a further report. In the meantime petitioner was impleaded as supplemental defendant No.2. He filed written statement (Ext.P4) denying right of respondent No.1/plaintiff to use the disputed way. Two days before the case was scheduled for trial in the list petitioner filed Ext.P6, application to remit the report and sketch to the Advocate Commissioner stating that all the necessary details for just decision of the case were not collected by the Commissioner. That application was opposed by respondent No.1/plaintiff. Learned Munsiff vide the impugned order dismissed Ext.P6, application. Learned counsel for petitioner states that reports and sketches on record were obtained before petitioner was impleaded as a party in the suit. According to the learned counsel matters requested for in Ext.P6, application are very relevant for consideration and unless those facts are noted WP(C) No.6847/2010 2 through the Advocate Commissioner petitioner will be put to irreparable loss and injury. Learned counsel for respondent No.1/plaintiff would contend that in the nature of contention raised by petitioner in Ext.P4, written statement it is not necessary to remit the report once again. Learned counsel has referred me to the relevant paragraphs in the written statement where according to the learned counsel petitioner has admitted existence of the disputed way his only contention being that respondent No.1 is not entitled to use the said pathway. 2. Petitioner has a contention that even as per the claim of respondent No.1, right of way claimed by latter arises from a partition deed executed between the predecessors-in-interest of the parties hereto. This ofcourse is denied by learned counsel for respondent No.1 who maintains that the right claimed by respondent No.1 is one of easement by way of prescription. Whatever that be it is not necessary for me to go into that question at this stage. 3. In the sketch accompanying Ext.P3, report Advocate Commissioner has noted a teak tree towards southern portion of disputed plaint B schedule. Advocate Commissioner has also noted its location with reference to the boundary of plaint B schedule on either sides. It is the contention of learned counsel for petitioner that in view of existence of that teak tree and laterate stone wall on the southern side of the way vehicular traffic through the said way is not possible. It is pertinent to note that petitioner filed written statement on 25.08.2009 and hence necessarily, his impleadment as supplemental defendant No.2 was WP(C) No.6847/2010 3 prior to that day. The reports and sketches now on record were there even at the time of impleadment of petitioner. But he has chosen to file Ext.P6, application only on 08.12.2009. Petitioner had sufficient time to apply for remission or for appointment of another Commissioner to note the matters he has requested for in Ext.P6, application but that was not done. Hence there is no reason for this Court to interfere with Ext.P7, order . But I make it clear that if in the course of evidence and on examining the Advocate Commissioner and on recording other evidence learned Munsiff finds that it is necessary to get further information through an Advocate Commissioner for a just and fair disposal of the issues involved, it will be open to the learned Munsiff to appoint an Advocate Commissioner to report on the relevant matters and the impugned order shall not be a bar for that. Leaving that opportunity open to the petitioner, this Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks