IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 16962 of 2008(T) -------------------------- OS.549/2005 of PRL.M.C., KOCHI .................... PETITIONERS: ---------------- 1. PUSHPA JANARDHANAN, W/O.LATE JANARDHANAN , AGED 63, KALAPURACKAL HOUSE, AMBEDKAR ROAD, EDAKOCHI, KOCHI-6. 2. JAYENDRAN , S/O.VISWAMBARAN AGED 55, KOOVAKKATTU, DR.AMBEDKAR ROAD, EDAKOCHI, KOCHI-6 BY ADV.SRI.KRISHNA KUMAR RESPONDENTS;- ------------------- 1. KOTHA W/O.LATE ANIMANCHAN AGED 82, THURUTHUPURAM HOUSE, DR.AMBEDKAR ROAD, EDAKOCHI, KOCHI-6. 2. SUGHATHAN, S/O.LATE ANIMANCHAN, AGED 58, DR.AMBEDKAR ROAD, EDAKOCHI, KOCHI.6. 3. SECRETARY, COCHIN CORPORATION, O/O.THE COCHIN CORPORATION PARK AVENUE ROAD, ERNAKULAM 4. ASST.EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, KOCHI.5. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 6/6 2008 / , THE COURT ON 06/06/2008 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 16962 OF 2008 =========================== Dated this the 6th day of June, 2008 JUDGMENT Petitioners are the plaintiffs in O.S.549/2005 on the file of Munsiff Court, Kochi. Suit was filed claiming a decree for permanent prohibitory injunction from constructing any structures above the water supply pipeline and also for a mandatory injunction to defendants 1 and 2 to demolosh, dismantle and remove the boundary wall constructed above the water supply line and also for damages of Rs.10,000/- caused to the petitioners on account of the loss suffered by them due to the tortuous acts of defendants. At the instance of the petitioners a Commissioner was appointed earlier and the Commissioner has submitted Ext.P4 report. Thereafter petitioners filed Ext.P2 petition to appoint the Assistant Executive Engineer of Water Authority to assess the damage to the pipeline. It was dismissed under Ext.P3 for the reason that the W.P.(C)16962/2008 2 Assistant Executive Engineer is a party to the suit. It is thereafter Ext.P6 I.A.83/2008 for appointing a retired Engineer from Kerala Water Authority to assess the damage caused to the pipeline carrying potable water to the residents of petitioners was filed. It was dismissed under Ext.P7 for two reasons. Firstly it was stated that the petition is belated. Secondly it was stated that the data sought to be collected has no relevance to the relief sought for. The order is challenged in the petition. Learned counsel appearing for the petitioner vehemently argued that suit is for damages and the pipeline is through the common pathway and in such circumstance learned Munsiff should have appointed the Commissioner. 2. On hearing the learned counsel and going through the plaint which is made available as well as Ext.P7 order, I do not find any illegality or irregularity warranting interference in exercise of the powers of this court under Article 227 of Constitution of India. W.P.(C)16962/2008 3 3. What was sought to be collected by appointing a Commissioner was to assess the damage caused to the pipeline which is laid by the Water Authority. The damages claimed is for the tortuous act of the defendants. In such circumstance, Ext.P7 order is perfectly legal. Writ Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006