IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 WP(C).No. 11922 of 2010(O) --------------------------------------- OS.392/2006 of IIIIRD ADDIDIONAL MUNSIFF COURT,TRIVANDRUM .................... PETITIONER(S): ---------------------- MOLLY CHACKO,KADAVIL HOUSE, DEVASWOM LANE, KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): -------------------------- 1. V.M.JOHN, T.C.11/296,PANAVILA, THIRUVANANTHAPURAM. 2. CITY CORPORATION, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, 3. LEELAMMA SKARIAH,THOPPIL HOUSE, CHEMBAKASSERY NAGAR,KESAVADASAPURAM, THIRUVANANTHAPURAM. 4. CHERIAN SKARIAH, THOPPIL HOUSE, CHEMBAKASSERY NAGAR,KESAVADASAPURAM, THIRUVANANTHAPURAM. 5. DR.RECHEL JOSEPH, THOPPIL HOUSE, CHEMBAKASSERY NAGAR,KESAVADASAPURAM, THIRUVANANTHAPURAM. 6. KOSHY SKARIAH,THOPPIL HOUSE, CHEMBAKASSERY NAGAR,KESAVADASAPURAM, THIRUVANANTHAPURAM. 7. ALEXANDER OOMMAN,THOPPIL HOUSE, CHEMBAKASSERY NAGAR,KESAVADASAPURAM, THIRUVANANTHAPURAM. tss W.P.(C) NO.11922/2010 8. SANTHAMMA JOHN, T.C.11/296,PANAVILA,THIRUVANANTHAPURAM. 9. JIJI MATHEW JOHN, T.C.11/296.PANAVILA, THIRUVANANTHAPURAM. ADV. SRI.D.SAJEEV FOR R1, 8 & 9 SRI.LIJI.J.VADAKEDOM FOR R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.11922/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINTR IN OS. 32/06 OF MUNSIFF COURT, THIRUVANANTHAPURAM. P2:- COPY OF THE WRITTEN STATEMENT FILED BY IST RESPONDENT IN OS. 392/2006. P3:- COPY OF THE COMMISSION REPORT OF ADVOCATE COMMISSIONER DTD. 1.4.2006. P4:- COPY OF THE IA. 9462/2009 IN OS.392/2006. P5:- COPY OF THE ORDER DTD. 4.1.2010 IN IA.9462/09 IN OP. 392/2006 OF PRINCIPAL MUNSIFF COURT, TVPM. P6:- COPY OF THE PLAINT IN OS. 1901/08 OF THE MUNSIFF COURT, THIRUVANANTHAPURAM. P7:- COPY OF THE JUDGMENT DTD. 25.9.2009 IN OS.1901/08 OF IST ADDL. MUNSIFF COURT, THIRUVANANTHAPURAM. P8:- COPY OF THE APPEAL MEMORANDUM IN AS.198/09 OF DISTRICT COURT, TVPM. P9:- COPY OF THE RESURVEY PLAN. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss N.K.BALAKRISHNAN, J. ---------------------------------------------------- W.P.(Civil) No.11922 of 2010 ---------------------------------------------------- Dated this the 5th day of April, 2011 Judgment The plaintiff in O.S.No.392 of 2006 on the file of the Munsiff's Court, Thiruvananthapuram is the petitioner. Her application for issuance of commission was dismissed by the court below. That order is challenged in this revision. Learned counsel for the petitioner submits that earlier one suit was filed by herself and others as plaintiffs and that suit happened to be withdrawn since the petitioner was away. It was thereafter O.S.No.392 of 2006 was filed. Stating that the defendants encroached into the public lane and reduced the width of another portion of the public lane abutting the suit property, O.S.No.1901 of 2008 was filed. No doubt, a serious question was raised why a second suit was filed when the factum of encroachment, if any, in violation of the injunction order could have been raised in the earlier suit itself by amendment of the plaint. That suit was tried and disposed of as per Ext.P7 judgment dated 25.9.2009. 2. Learned counsel for the defendants would submit that a WPC 11922/10 2 commission was taken out in Ext.P7 suit and also in this suit and so, there is no necessity of issuing a commission again. Learned counsel for the petitioner would submit that a survey plan has been produced which would show the existence of the public lane. It is stated that the width of the lane is 14 feet. According to the petitioner, the width of the same was reduced by the defendants. Learned counsel for the defendants would submit that in Ext.P7 suit it was found that the allegation regarding trespass was not proved. Whatever that be, whether Ext.P7 judgment would amount to res judicata or not is a matter to be decided only at the time of trial. 3. The question is whether any prejudice will be caused to the defendants by issuance of commission. Learned counsel for the defendants would submit that as there is already a detailed report, there is no necessity to issue a fresh commission. Learned counsel for the petitioner would submit that the points to be noted by the Commissioner, namely, the existence of the lane, its length etc., the correct boundaries of the plaint A schedule property and the compound wall and the area between two are required to be noted. These aspects, according to the petitioner, WPC 11922/10 3 were not noted by the Commissioner on earlier occasions and as such these aspects are absolutely necessary for proper adjudication of the disputes. To what extent the above aspects would be relevant is a matter to be considered at the time of trial. Issuing a commission for the purposes as mentioned in Ext.P4 application will not in any way prejudice the defendants. Hence, the impugned order is set aside. The court below is directed to issue commission as sought for under Ext.P4. The commission batta to be paid to the Commissioner is to be fixed by the court below. The court below will direct the Commissioner to submit the report at the earliest. The Writ Petition is allowed as above. N.K.BALAKRISHNAN, JUDGE. srd WPC 11922/10 4 WPC 11922/10 5