IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 30352 of 2009(O) ---------------------------------------- AGAINST THE ORDER DATED 03/04/2009 IN IA.353/2009 IN OS.222/2007 of MUNSIFF COURT,HARIPAD . .................... PETITIONER(S): ------------------------- SARASAMMA, D/O. KOCHUKUNJU, PEROORVEETTIL @ UNDETHKUZHIVELIL KANICHANALLOOR MURI, CHEPPAD VILLAGE, ALAPPUZHA DISTRICT. BY ADV. MR.S.SANAL KUMAR RESPONDENT(S): ---------------------------- 1. PANKAJAKSHAN, S/O. CHELLAPPAN, PEROORVEETTIL KANICHANELLOOR MURI, CHEPPAD VILLAGE, ALAPPUZHA. 2. USHA, W/O. PANKAJAKSHAN, PEROORVEETTIL KANICHENELLOOR MURI, CHEPPAD VILLAGE, ALAPPUZHA. 3. PRAMOD, S/O. PANKJAKSHAN, PEROORVEETTIL KANICHANELLOOR MURI, CHEPPAD VILLAGE ALAPPUZHA. R1-R3 BY ADV. MR.SUMAN CHAKRAVARTHY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30352/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 222/07. P2:- COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DTD. 18.9.07. P3:- COPY OF THE WRITTEN STATEMENT IN OS. 222/07. P4:- COPY OF THE REPORT DTD. 23.8.08. P5:- COPY OF THE COMMISSION REPORT ON 31.8.08. P6:- COPY OF THE IA. N.353/09 IN OS. 222/07. P7:- COPY OF THE ORDER OF THE MUNSIFF COURT, HARIPPAD DTD. 3.4.09. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.30352 OF 2009 -------------------------------- Dated this the 14th day of December 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records relating to Ext.P7 peruse the same and set aside the order passed therein. ii) Issue such other writ, order or direction which this Hon'ble Court deems fit in the nature and circumstances of the case. 2. Petitioner is the additional second plaintiff in O.S No. 222 of 2007 on the file of Munsiff Court, Harippad. Suit was instituted by the father of the petitioner, and, pending suit, he had passed away. Petitioner was thereupon impleaded as additional second plaintiff. Suit is one for perpetual prohibitory injunction, and the respondents are the defendants. Suit claim was resisted by the defendants filing Ext.P3 written statement in which among other W.P.(C).No.30352 OF 2009 Page numbers contentions they contended that they have a right of way through the southern side of the plaint property. The identity of the plaint property was also disputed contending that the plaintiffs have got only lesser extent than what is shown under the partition deed under which title and possession is claimed over the property. An application for interim injunction identical to the relief sought for in the suit till its disposal moved by the plaintiff, after hearing both sides, was allowed by the learned Munsiff. With the application for interim injunction, the plaintiff had moved for obtaining a report by deputing an advocate commissioner. That application being allowed, the advocate commissioner, after conducting local inspection filed Ext.P2 report. With the written statement, the defendants have applied for appointment of a commission and that being allowed, the commissioner again conducted a local inspection and filed Ext.P4 report. Later, alleging violation of the interim injunction which had been confirmed after hearing both sides, petitioner/plaintiff moved application for interim mandatory injunction. For prosecuting the defendants under Order 39 Rule 2A of the Code of Civil Procedure for violating W.P.(C).No.30352 OF 2009 Page numbers the order of injunction, and also for appointment of a commissioner to note the cutting open of the pathway through the property after filing of Ext.P2 and Ext.P4 reports two separate applications were also filed. The advocate commissioner who prepared Ext.P2 and Ext.P4 reports earlier was deputed, and after conducting local inspection again he filed Ext.P5 report. Pending consideration of the applications for interim mandatory injunction and also the prosecution petition moved by the plaintiff, the defendants applied for appointment of a commission again to measure out the property with reference to the partition deed relied by the plaintiffs and survey records (old and new) by deputing the advocate commissioner for furnishing a report and plan with the assistance of a surveyor. That application was objected to by the plaintiff. However, the court below after hearing both sides allowed that application vide Ext.P7 order. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.30352 OF 2009 Page numbers 3. I heard the counsel on both sides. Three commission reports have already been collected in the case is canvassed by the learned counsel for the petitioner/plaintiff to contend that no further report as directed in Ext.P7 order acceeding to the request made by the defendants is necessary for a fair and proper disposal of the suit on merits. Commission application had been moved by the defendants only to delay and protract the enquiry on the application moved by the plaintiff for interim mandatory injunction and prosecution application is the submission of the learned counsel for the petitioner. On the other hand, the learned counsel for the petitioner would submit that in the previous commission reports, no measurement over the property with reference to the title deed or survey records has been carried out and so much so to adjudicate the real controversy involved in the suit the measurement of the suit property with reference to the relevant records as prayed for by the defendants and allowed by the court under Ext.P7 order is essential. Ext.P3 is the written statement filed by the defendants in the suit. They have disputed and challenged the extent of the property claimed by the plaintiff W.P.(C).No.30352 OF 2009 Page numbers contending that a portion of the plaint property had been enjoyed by them as a pathway for the last several years. The plaint property is having an extent of 9.11 cents, according to the plaintiff, on the basis of the schedule description in the partition deed. But it is having a lesser extent of 7.75 cents after excluding a pathway is the case of the defendant. Suit being one for perpetual prohibitory injunction where identity of the property has been disputed measurement of that property with reference to the title deed and survey records may be essential for a fair disposal. Though the burden was on the petitioner/plaintiff to identify the property to get a decree as applied for, now the defendants have taken up that burden and a commission application has been allowed by the court under Ext.P7 order to measure out the property for fixing its identity. I find no impropriety can be imputed against Ext.P7 order of the court which appears to be essential for a proper adjudication of the disputes involved in the suit. In case the plaintiff seeks for ascertaining of additional matters, she can file an application before the court so that it can also be considered at the time when the commissioner conduct local inspection W.P.(C).No.30352 OF 2009 Page numbers and measure out the property with the assistance of the surveyor, subject to the orders passed by the court on such application, if any, moved by the plaintiff. However, the consideration of the application for interim mandatory injunction moved by the plaintiff on the ground of violation of the order of injunction already passed by the court need not and should not wait for the filing of the report afresh by the commissioner on the basis of the title deed and survey records. The question whether there was any violation of the interim injunction passed by the court deserve to be examined by the court on the basis of the available materials already tendered in the case and appropriate orders thereof have to be passed in accordance with law. So far as the application for prosecution filed under Order 39 Rule 2A of the Code of Civil Procedure it has to be considered with the trial of the suit, but separate order thereof has to be passed, after affording reasonable opportunity to both sides to lead evidence. Evidence can be recorded in common for the purpose of the suit and also for the application, but, order on the application has to be passed separately because the challenges and the W.P.(C).No.30352 OF 2009 Page numbers consequences emanating thereof are different and distinct from the decision of the suit. 4. So much so, the writ petition is disposed directing the court below to dispose of the interim mandatory injunction filed by the petitioner/plaintiff as expeditiously as possible on the available records within a period of six weeks from the date of receipt of the records. It shall also consider any application moved by the plaintiff for ascertainment of additional matters by the commissioner appointed by Ext.P7 order, and passing of appropriate orders on the application, if any, direct the commissioner to file the report after carrying out the inspection and measurement as expeditiously as possible. Subject to the above directions/observations, the writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv