IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 27685 of 2008(U) -------------------------- OS.285/2007 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER(S): --------------- 1. RATHNAMMA, AGED 72, W/O LATE PADMANABHAN NAIR, PUTHIYAPARAMBIL HOUSE, EZHUPUNNA VILLAGE, CHERTHALA TALUK. 2. REMANIKUTTY, AGED 46, W/O SASIDHARAN NAIR, PUTHIYAPARAMBIL HOUSE, EZHUPUNNA VILLAGE, CHERTHALA TALUK. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): --------------- FRANCIS, AGED 76, S/O VAVA, POLLANIKARTHIL HOUSE, KANIYAMPARAMBIL ERAMALLOR MURI, EZHUPUNNA VILLAGE, CHERTHALA TALUK ADV. SRI.J.OM PRAKASH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.27685/08 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.285/2007 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT, CHERTHALA. EXT.P2: COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER. EXT.P3: COPY OF THE STATEMENT OF OBJECTON TO THE COMMISSIONER'S REPORT. EXT.P4: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS. EXT.P5: COPY OF THE COMMISSION APPLICATION. EXT.P6: COPY OF THE ORDER DATED 7.7.2008 IN I.A.NO.1355/2008 IN O.S.NO.285/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.27685 OF 2008 () ----------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records leading to Ext.P6 order examine the same and set aside the same holding the same as illegal and perverse and allow I.A.No.1355/2008 if necessary by giving necessary directions in the matter of conduct of the commission inspection and in the matter of the points to be noticed and thus render justice to the petitioner if necessary by issuing a writ in the nature of certiorari. ii. to allow the petitioners to recover the full costs incurred for the institution and conduct of the writ petition from the respondent. 2. Petitioners are the defendants in O.S.No.285 of 2007 on the file of the Principal Munsiff Court, Cherthala. Respondent is the plaintiff, and suit is for declaration of right WPC.27685/08 2 of prescriptive easement of the plaintiff over a way described as item No.3 in the plaint. At the time of filing of the suit, at the instance of the plaintiff, an advocate commissioner, after conducting local inspection ascertained the details sought for and filed a report and rough sketch. After filing of the written statement resisting the suit claim, the petitioners/defendants moved an application for appointment of a commissioner to ascertain some other matters, which, according to them, were relevant for proper adjudication and fair disposal of the suit. That application was opposed to by the plaintiff. The learned Munsiff, accepting the objections raised by the plaintiff, passed ExtP6 order dismissing the commission application moved by the defendants. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The reasons adverted to in Ext.P6 order by the learned Munsiff dismissing the commission application in the nature of the disputes WPC.27685/08 3 arising for adjudication, are not proper and correct, is the submission of the learned counsel for the petitioners/defendants. Suit being one for declaration of easement, determination of item No.3, the pathway described in the suit, is vital, and so much so, measuring out that pathway with reference to other items also is essential. What has been collected earlier was only some details over the plaint item No.3 and a rough sketch. That being so, for a fair adjudication of the disputes involved, measuring out the suit property, item No.3 pathway, is essential for granting the relief, provided, the plaintiff is entitled thereof. There is already a report in the case, which persuaded the learned Munsiff to dismiss the application moved by the defendants, in the given facts, is not proper and correct. Only a rough sketch has been collected with the previous report. So much so, setting aside Ext.P6 order, I direct the learned Munsiff to pass appropriate orders on the commission application moved by the defendants. In case the plaintiff also applies for measuring out the property and for ascertaining any other matter, which may be necessary for the proper adjudication of WPC.27685/08 4 the suit, the court below shall pass appropriate orders on such application as well. Writ petition is disposed with the above direction. S.S.SATHEESACHANDRAN JUDGE prp