IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).NO. 26161 OF 2010(O) ---------------------------------------- OS.205/2007 OF MUNSIFF COURT, PEERUMEDU .................... PETITIONER(S): ------------------------ 1. SURESH JCOB, AGED 34 YEARS S/O.JACOB MATHEW, JEYAMANGALAM HOUSE OLASSA KARA, AYMANAM VILLAGE, KOTTAYAM TALUK. 2. VINNY WILFRED, AGED 29 YEARS W/O.SURESH JACOB, JEYAMANGALAM HOUSE OLASSA KARA, AYMANAM VILLAGE, KOTTAYAM TALUK. PETITIONERS 1 AND 2 AR REP BY THE THEIR P/A. HOLDER, MR.LIYAKATH ALIKHAN, AGED 55 YEARS, PERUMKALPUTHEPARAMBIL HOUSE,IDUKKI DISTRICT BY ADV. SRI.MATHEW KURIAKOSE RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTE BY DISTRICT COLLECTOR, IDUKKI, PAINAVU, IDUKKI DISTRICT. 2. THE TAHSILDAR, PEERMADE TALUK IDUKKI DISTRICT. 3. THE VILLAGE OFFICER, PEERMADE TALUK, IDUKKI DISTRICT 4. THE SUPERINTENDENT , TALUK HEAD QUARTERS HOSPITAL, IDUKKI DISTRICT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) NO.26161 of 2010 ==================================== Dated this the 18th day of August, 2010 J U D G M E N T This Writ Petition is filed by petitioners-plaintiffs in O.S. No.205 of 2007 of the court of learned Munsiff, Peermade challenging Ext.P5, Memorandum of Inspection and Ext.P7, order declining to incorporate in the Memorandum of Inspection certain facts which according to the petitioners were required to be incorporated in the Memorandum of Inspection. Petitioners sued respondents for a decree for prohibitory injunction claiming that that they and their predecessors-in-interest were using the disputed way since the last 80 years as of right without obstruction and that about 20 years back the authorities of Taluk Head Quarters Hospital constructed a compound wall leaving 9 metres wide space for access to plaint A schedule property belonging to the petitioners. Advocate Commissioner inspected the property and submitted report. Respondents filed application under Order XVIII Rule 18 of the Code of Civil Procedure requesting learned Munsiff to conduct a local inspection. Learned Munsiff allowed that application, inspected the disputed way and as enjoined by law W.P(C) No.26161 of 2010 -: 2 :- prepared a Memorandum of Inspection (Ext.P5) as to what learned Munsiff had observed at the spot. Grievance of petitioners is that learned Munsiff has expressed his opinion in the Memorandum of Inspection which is not warranted in view of factual situation at the spot and to make necessary amendment, filed Ext.P6, application which was refused by the learned Munsiff vide Ext.P7, order stating that learned Munsiff has recorded what was seen at the spot and “come to a conclusion on real evidence observed” and hence no alteration as prayed for in Ext.P6 is warranted. Learned counsel for petitioners contends that opinion expressed by the learned Munsiff in paragraph 3 of Memorandum of Inspection is not correct and is not justified by the facts of the case. It is also pointed out by learned counsel placing reliance on various decisions on the point that impression gathered by the learned Munsiff at the time of local inspection is not a substitute for evidence and cannot be used as evidence. 2. So far as interference with Ext.P5, Memorandum of Inspection is concerned I do not think that it is required since learned Munsiff has observed that what was seen at the spot is recorded in Ext.P5. Grievance of petitioners then is concerning W.P(C) No.26161 of 2010 -: 3 :- the alleged opinion expressed in paragraph 3 of Ext.P5 to the effect that “I am convinced that there existed a wall in between the two pillars and throughout the opening. The pillars are only supporting intervening pillars in the wall/kayyala and it is not the pillars constructed on either side of the opening passage to plaint A schedule property.” Petitioners are also aggrieved by the observation in the last sentence in Ext.P5 that “the tarred portion which obviously is the property of the hospital.” 3. Various Decisions on the point informs me that though Order XVIII Rule 18 of the Code permits the Presiding Officer to conduct local inspection, that is for the purpose of appreciation of evidence adduced by the parties and cannot be a substitute for evidence. Judgment cannot be based solely on the Memorandum of Inspection nor can it be used to contradict the witnesses examined by either side or to decide whether evidence let in by the parties is true or not. The Judge cannot substitute his own views formed as a result of local inspection for the evidence let in by the parties. It is open to the parties to adduce evidence in support of their respective contentions in the suit. Memorandum of Inspection can only be used for the purpose provided under Order XVIII Rule 18 of the Code. It follows that notwithstanding W.P(C) No.26161 of 2010 -: 4 :- whatever observations learned Munsiff has made in Ext.P5 it is open to the parties to adduce evidence in support of their respective contentions. It is also open to the petitioners to impress upon the court below as regards the use to which the Memorandum of Inspection can be put to. In that view of the matter I do not find reason to interfere with Ext.P7, Order. Writ Petition is closed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv