IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 17292 of 2010(O) -------------------------- AGAINST THE ORDER DATED 28/05/2010 IN IA.830/2010 IN OS.34/2006 of MUNSIFF COURT, OTTAPPALAM .................... PETITIONER: --------------- SASIKUMAR,AGED 44 YEARS, S/O.APPAYIL GOPALAN, PALAPPURAM AMSOM,DESOM,OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT: --------------- SANKARANKUTTY,AGED 57 YEARS, S/O.APPAYIL DECEASED CHOZHI KUTTAN,PALAPPURAM AMSOM DESOM, OTTAPALAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17292 of 2010 --------------------------------------- Dated this 04th day of June, 2010 JUDGMENT Petitioner sued for a decree for prohibitory injunction to restrain respondent from obstructing the pathway over which petitioner claimed a right of easement. That claim was disputed by respondent. Advocate Commissioner inspected the property and submitted report, according to the learned counsel reporting existence of the disputed pathway. Thereafter on request of respondent the report was remitted to the same Commissioner who after further inspection submitted yet another report and plan but stating that the disputed way could not be identified. Petitioner, not satisfied with the second report and plan filed I.A.No.1461 of 2009 for further remission of the report. That request was disallowed by the learned Munsiff against which petitioner filed W.P.C.No.30145 of 2009. That petition was dismissed by judgment dated 26-11-2009 for the reason that I.A.No.1461 of 2009 was unduly delayed. Later, petitioner filed I.A.No.830 of 2010 for permission to withdraw the suit with liberty to file fresh suit stating that petitioner is not able to get appropriate evidence to prove his case. That application was resisted by the respondent. Learned W.P.C.No.17292 of 2010 : 2 : Munsiff has upheld the objection raised by respondent and dismissed I.A.No.830 of 2010. That order is under challenge in this writ petition. Learned counsel for petitioner contends that in the light of the conflicting reports, petitioner is not able to adduce evidence regarding existence of the disputed pathway and that court below has not even given an opportunity to the petitioner to examine the Advocate Commissioner. Learned counsel has placed reliance on the decision in Amina Vs. Kunjubawa (2006(4) KLT 609). 2. The decision was distinguished by learned Munsiff stating that in that case what was involved was difficulty to get appropriate evidence while in the case on hand the contention is that report and plan submitted by the Advocate Commissioner after remission is not favourable to the petitioner. That the report and plan are not favourable to the petitioner is not a ground to withdraw the suit with liberty to file fresh suit. Having gone through the order under challenge and heard learned counsel, I do not find any illegality or irregularity in the order under challenge requiring interference by this court under Article 227 of the Constitution. If petitioner wants to examine the Advocate Commissioner on his side as witness at the time of trial petitioner can make a request to the learned Munsiff for that purpose and if W.P.C.No.17292 of 2010 : 3 : the request is made learned Munsiff will consider the request and pass appropriate order in accordance with law. The writ petition is dismissed with the above observation. (THOMAS P JOSEPH, JUDGE) Sbna/-