IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 35794 of 2008(J) -------------------------- AGAINST THE ORDER DATED 11/11/2008 IN IA 6762/08 IN OS.1165/2005 of I ADDL.M.C.,ERNAKULAM .................... PETITIONER: --------------- PARAMESWARAN, AGED 69 YEARS, S/O.GANGADHARAN NAIR, NEELIVEETTICHIRAYIL, HAREESH MANDIR, EDAPPALLY.P.O, KOCHI-682 024. BY ADV. SRI.JOSEPH FRANKLIN RESPONDENTS: ------------------------ 1. C.V.SEBASTIAN ALIAS KUNJAPPAN, CHAKOTHUTHARAYIL,MAMANGALAM, POTTAKUZHY ROAD, PALARIVATTOM.P.O, KOCHI-25. 2. JOLLY VARGHESE, VITHAYATHIL HOUSE, HOUSE NO.34/2130 A, B T S MAMANGALAM CROSS ROAD, EDAPALLY, KOCHI-24. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------- W.P(C) No. 35794 OF 2008-J ------------------------------- Dated this the 4th December, 2008. JUDGMENT This writ petition is filed by the second defendant in O.S.1165/2005 on the file of the Sub Court, Ernakulam seeking for an order quashing Ext.P6 order of the court below dated 11.11.2008 on I.A.6762/2008 filed in the suit by the respondent/plaintiff. The prayer in the said I.A which is produced as Ext.P4 in this writ petition is for a direction being given to the defendants to remove all obstructions including rubbles and flower pots kept in the northern boundary and the dwarf wall on the eastern boundary of the property of the defendant so as to enable taking of an ambassador car through plaint 'C' schedule property and if the defendants refused to do so, to allow the plaintiffs to remove the same in the supervision of the commissioner and to realise the costs of the same from the defendants. 2. It is worthy to note that it is pursuant to Ext.P3 judgment passed by this court on 25.3.2008 in W.P(C) 27366/2007 that the court below issued commission. The direction of this Court in WPC 35794/2008 2 Ext.P3 judgment contained in paragraph 4 of the judgment is as follows:- “I direct the court below to appoint a commissioner to prepare a sketch showing the bell- mouths, its width and also the passage with its width. If there is any shortage, which according to the commissioner will make the plaintiffs unable to take the car through the property, to suggest the width of the bell-mouth and also to find out where exactly the passage is not having a width of 2.30 metres. I direct the court below to appoint a senior experienced commissioner to do this work and submit a plan and report. The court shall also hear both sides and then decide the matter in accordance with law which will give a permanent solution to the dispute between the parties.” 3. In view of the above direction it was for the commissioner to do the needful and if any inconvenience is there for the commissioner to execute the order it is for the commissioner to seek for appropriate directions from court and the court below passing an order in the nature of Ext.P6 on Ext.P4 application filed by the respondent/plaintiff is unwarranted. The direction of the nature of the one given under Ext.P6 order is one to be issued after obtaining commission report and considering the objections of both sides and it is not as if by giving a direction in the nature of the one issued in Ext.P6, the respondent/plaintiff can be allowed to have the WPC 35794/2008 3 relief that he wants finally in the suit. In view of the urgency to interfere in the directions given in Ext.P6 which was not warranted, I dispose of this writ petition setting aside Ext.P6 even without notice to the respondents. 4. The petitioner shall produce a copy of this judgment in the court below forthwith. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN JUDGE jj