IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 WP(C).No. 23580 of 2009(O) ------------------------------------- OS.185/2005 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONER(S): ----------------------- VENKITACHALAPATHY, S/O.SUBBAYYA TARAKAN, RESIDING AT PALLATHERY AMSOM & DESOM, PALAKKAD TALUK. BY ADV. SMT.P.K.RADHIKA RESPONDENT(S): ------------------------ SEETHUMADHAVAN, S/O.SUBBAYYA TARAKAN, RESIDING AT THACHANGODE KALAM, VADAKKEKKAD, PALAKKAD TALUK. ADV. SRI.SAJAN VARGHEESE K. SRI. LIJU. M.P THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 23580/2009 -O APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE COMMISSION REPORT. P2 COPY OF THE OBJECTION FILED BY THE DEFENDANT THE COMMISSION REPORT. P3 COPY OF THE AFFIDAVIT FILED BEFORE THE COURT BELOW. P4 COPY OF THE ORDER DATED 3/6/2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.23580 OF 2009 ------------------------------- DATED THIS THE 13TH DAY OF OCTOBER, 2010 JUDGMENT Defendant in O.S.No.185/2005 on the file of the Principal Munsiff's Court, Palakkad is the petitioner. The prayer in the writ petition is for setting aside Ext.P4 order passed by the Principal Munsiff, Palakkad in I.A.No.3473/2008 in O.S.No.185/2005, I.A.No.3473/2008 was filed by the defendant in the suit to set aside the commission report and plan. 2. The suit was filed for permanent prohibitory injuction restraining the defendant from trespassing into the plaint B schedule property and from laying pipeline through the same. Ext.P1 is the report and plan. Ext.P2 is the objection filed by the defendant to the commission report. Ext.P3 is a petition seeking permission to cross-examine the Advocate Commissioner. In Ext.P4 order the court observed that the Advocate Commissioner identified the property with prior notice to the parties and with the -2- WP(C).No.23580/09 assistance of a private surveyor and that the report and plan is self- explanatory. The court also observed that though the Advocate Commissioner was examined as PW-2, what exactly is the short comings to the report and plan are not substantiated and therefore an application of this nature cannot be allowed as a matter of course. The court also held that the petitioner is not vigilant in conducting the case and that a person who remain in slumber cannot expect any relief from the court. On the basis of the said reasoning the court by Ext.P4 order dismissed I.A.No.3473/2008 filed for setting aside the Commission report and plan. The petitioner filed I.A.No.14110/2010 on 7th October, 2010, in which it is stated that the court granted permission to cross-examine the Commissioner on two occasions; but unfortunately the counsel appearing for the petitioner failed to cross-examine the Commissioner, since his mother was hospitalised. The inconvenience of the lawyer was represented before the court below; but the court below refused to grant another adjournment to -3- WP(C).No.23580/09 cross-examine the Commissioner. It is also stated in the affidavit that 20 families are depending on the water supplied through the pipeline which is in dispute. Therefore, it is requested that the matter may be remitted granting a chance to the petitioner to cross- examine the Advocate Commissioner who submitted the commission report and plan. Though the court below granted opportunities, the petitioner did not avail of the same. Now it is stated that his counsel could not cross-examine the Commissioner, due to some personal inconvenience. The reason stated is that mother was hospitalised during the relevant time. The suit is of the year 2005. In the facts and circumstances stated above, I think that an opportunity can be given to the petitioner to substantiate his objections to the commission report and plan and also to substantiate his prayer for setting aside the said report and plan. The case was not listed for trial till today. The court below shall list the case for trial and during the course of examination of the witnesses, an opportunity shall be given to the petitioner to cross- -4- WP(C).No.23580/09 examine the Advocate Commissioner to substantiate his contentions. Writ Petition is disposed of with the above observation. HARUN-UL-RASHID, Judge. kcv. -5- WP(C).No.23580/09