IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 WP(C).No. 6655 of 2006(P) ------------------------------------ OS.109/1999 OF THE MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER: ------------------- JAYASREE.T.P,AGED 40,W/O.RADHAKRISHNAN NAIR,THEKKEKUTT,JAYASADANAM,MADAPPILLY MURI, MADAPPILLY VILLAGE,CHANGANACHERRY TALUK, NOW RESIDING AT NECHETTU,VAZHARANGALAM, CHENGANNUR VILLAGE,CHENGANNUR TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SMT.THANKOM.G RESPONDENTS: ----------------------- 1. RAMACHANDRA KURUP, AGED 60, MANJUSHA HOUSE, PERUMPANACHY.P.O, MADAPPILLY VILLAGE, CHANGANACHERRY TALUK. 2. RADHA DEVI, W/O.RAMACHANDRA KURUP, AGED ABOUT 54, MANJUSHA HOUSE, PERUMPANACHY.P.O, MADAPPILLY VILLAGE, CHANGANACHERRY TALUK. ADV. SRI.JOMY GEORGE FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6655 OF 2006-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO.109/1999 ON THE FILES OF MUNSIFF'S COURT, CHANGANACHERRY DATED 22.02.1999 EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.109/1999 ON THE FILES OF MUNSIFF'S COURT, CHANGANACHERRY DATED 09.06.2000 EXT.P3 TRUE COPY OF THE JUDGMENT IN THE APPEAL IN A.S.NO.157/2004 PASSED BY HON'BLE DISTRICT COURT, KOTTAYAM DATED 18.06.2005 EXT.P4 TRUE COPY OF THE AMENDMENT APPLICATION IN A.S.NO.157/2005 DATED 31.03.2005 -DO- EXT.P5 TRUE COPY OF THE APPLICATION NO.1995/2005 IN O.S.NO.109/99 ON THE FILES OF MUNSIFF'S COURT, CHANGANACHERRY DATED 08.12.2005 EXT.P6 TRUE COPY OF THE COUNTER AFFIDAVIT IN O.S.NO.109/1999 -DO- DATED NIL EXT.P7 TRUE COPY OF THE ORDER DATED 25.01.2006 IN I.A.NO.1995/2005 IN O.S.NO.109/99 -DO- / TRUE COPY HARUN-UL-RASHID, J. ------------------------------------------- W.P.(C) No.6655 of 2005 ------------------------------------------ Dated, this the 22nd day of January, 2009 JUDGMENT The plaintiff in O.S.No.109 of 1995 on the file of the Munsiff Court, Changanacherry is the writ petitioner. The writ petition is filed challenging Ext.P7 order passed by the court below in Ext.P5 application sought to conduct investigation and for site inspection and report. The reason stated is that the details sought for are not necessary for the effective adjudication of the issue involved in the case. 2. The respondents - defendants resisted the application and prayed for dismissal of the same. 3. The prayer in the suit is for a permanent prohibitory injunction restraining the defendants or anybody under them from destroying and destructing the lateral support and geographical and environmental conditions of the plaint schedule property by excavating and removing the soil in their property and from committing any waste in their property. The original suit was dismissed by the trial court, but in appeal, the appellate court set aside the decree and judgment and directed the trial court to decide W.P.(C) No.6655 of 2006 2 the case afresh after giving an opportunity to the plaintiff to make necessary amendment in the pleadings and affording him an opportunity to substantiate his case on the basis of the amended pleadings as well by permitting him to adduce evidence. It is submitted by the plaintiff before the court below that the defendants excavated soil from their property after setting apart a portion of their property at a width of about 5 metres from the eastern boundary of the plaint schedule item No.1 property including the plaint schedule item No.2. It is also stated that due to the excavation of soil from the defendants property there is every likelihood of landslide from the portion of the property set apart by the defendants on the eastern side of plaint schedule item No.1. In such a context the plaintiff applied for issuing a Commission to ascertain and report the present condition of the plaint schedule property including the nature of the soil, lateral support and the natural condition. 4. Learned counsel for the defendants pointed out that there is already a commission report showing the nature and lie of the property. Subsequently, when the matter was pending in appeal, they have applied for a Commission. But, that application was not W.P.(C) No.6655 of 2006 3 pressed. Again, they have applied for a Commission before the trial court, but that application was also not prosecuted. 5. I have read the affidavit in support of the present application, Ext.P5. It is stated by the plaintiff that as a result of the wrong advice and by mistake she had requested the court to dismiss the application as not pressed. It is reiterated in the affidavit that due to the findings entered by the trial court and the directions issued by the court, to reappreciate the entire evidence on merits it has become necessary to ascertain and report the present condition of the plaint schedule property including the nature of the soil, lateral support and other matters sought to be reported. 6. In the present context, I am of the view that for the purpose of adjudication of the dispute between the parties and in the light of the contentions that no changes had been made to the lie of the property, it has become necessary for a second Commission report. At the same time by issuing applications one by one, the proceedings shall not be stalled and passing of the decree shall not be delayed any more. This application itself is filed belatedly. At the same time, taking into consideration the merits of the case I set W.P.(C) No.6655 of 2006 4 aside Ext.P7 order and allow Ext.P5 application on condition that the plaintiff shall pay Rs.5000/- as cost to the contesting defendants within a period of three weeks from today. The cost shall be paid either to the parties or to their counsel appearing in this Court. The Commissioner shall be deputed within a period of two weeks thereafter and the trial court shall take every effort to dispose of the suit within a minimum period. At any rate, the suit shall be decided within a period of six months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. HARUN-UL-RASHID (JUDGE) vns