IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 W.P(C).No. 36032 of 2008(M) --------------------------------------- OS.1558/2005 of II ADDL.M.C., ERNAKULAM ....................................... PETITIONER(S): --------------------- N.MOHANKUMAR, AGED 49 YEARS, S/O.LATE G,ACHUTHA PANICKER, MANAGER, CANARA BANK VENGETUNGU BRANCH, THRISSUR DISTRICT AND RESIDING AT SIVADAM, KARGIL CROSS ROAD, PAK LANE, VAZHAKKALA SOUTH, KOCHI-30. BY ADVS. SRI.B.RAMACHANDRAN SMT.JOLIMA GEORGE RESPONDENT(S): ------------------------ 1.SANTHAKUMARI KUNJAMMA, W/O.CHANDRAN PILLAI, AGED 58 YEARS, PULICKALATH HOUSE, JAYA VILLA, KARGIL ROAD, VAZHAKKALA SOUTH, KOCHI - 30. 2. CHANDRAN PILLAI, AGED ABOUT 62 YEARS, S/O.NARAYANA PILLAI, PULICKALATH HOUSE, JAYA VILLA, KARGIL ROAD, VAZHAKKALA SOUTH, KOCHI-30. BY ADV. SRI.R.DIVAKARAN FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36032 of 2008(M) A P P E N D I X EXHIBITS FOR THE PETITIONER :- EXT.P1 : COPY OF THE PETITION DEED NO.2855/70 DATED 13.11.1970 OF SRO, THRIKKAKARA. EXT.P2 : COPY OF ROUGH SKETCH OF THE PROPERTY OF THE PETITIONER AND 1ST RESPONDENT DATED NIL. EXT.P3 : COPY OF SALE DEED NO.437/03 OF SRO, THRIKKAKARA. EXT.P4 : COPY OF SALE DEED NO.4698/05 DATED 22.11.2005. EXT.P5 : COPY OF ORDER DATED 11.1.06 IN I.A.NO.10443/05 IN O.S.NO.1558/05. EXT.P6 : COPY OF FIR DATED 19.12.05 IN CRIME NO.401/05. EXT.P7 : COPY OF THE FINAL REPORT DATED 20.1.06 IN CRIME NO.401/05 AND NUMBERED AS C.C.54/07 JFCM COURT I, ALUVA. EXT.P8 : COPY OF OBJECTIONS IN I.A.NO.8860/07 IN O.S.NO.1558/05 DATED 19.11.07. EXT.P9 : COPY OF OBJECTIONS IN I.A.NO.9725/07 DATED 15.1.08 IN O.S.NO.1558/05. EXT.P10: COPY OF ORDER DATED 18.9.08 IN I.A.NO.8860/07 IN O.S.NO.1558/05. EXT.P11: COPY OF ORDER DATED 18.9.08 IN I.A.NO.9725/07 IN O.S.NO.1558/05. EXHIBITS FOR THE RESPONDENTS : EXT.R-1(a) : COPY OF THE COMMISSION REPORT IN I.A.NO.10442/05. EXT.R-1(b) : COPY OF THE COMMISSION REPORT IN I.A.NO.16012/05. EXT.R-1(c) : COPY OF THE NOTICE FOR INSPECTION OF THE PROPERTY. EXT.R-1(d) : COPY OF THE NOTICE FOR INSPECTION OF THE PROPERTY. EXT.R-1(e) : COPY OF THE JUDGMENT IN CMA NO.9/06. //TRUE COPY// P.A.TO JUDGE ami S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.36032 OF 2008 (M) ----------------------------------- Dated this the 17th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for records leading to Exts.P10 and P11 and scrutinise the same and quash Exts.P10 and P11 and direct the court below to consider the matter afresh by duly considering Exts.P8 and P9 objections properly and judiciously. ii. to issue any other appropriate writ, direction or order which the Honourable Court deem fit and proper to grant in the facts and circumstances of this case; and iii. to allow cost of this writ petition. 2. The 2nd defendant in O.S.No.1558/2005 on the file of the Munsiff's Court, Ernakulam is the petitioner herein. Suit is one for perpetual prohibitory injunction and the respondents are the plaintiffs. Exts.P10 and P11 orders were passed in the suit appointing an advocate commissioner to WPC.36032/08 2 determine certain matters sought for by the plaintiff in a work memo filed by him, overruling the objections raised by the defendant who contended that there is no pathway in existence in respect of which the plaintiff sought for the decree of injunction. The above orders are impeached in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Having regard to the submissions made and the facts and circumstances presented with reference to Exts.P10 and P11 orders and other materials tendered in the writ petition, I find the appointment of an advocate commissioner to collect evidence is absolutely essential for a proper adjudication of the suit for a fair disposal. The learned counsel for the petitioner contended that no pathway as claimed by the plaintiff is in existence and as such the appointment of a commissioner is a futile exercise. Whatever that be, when the plaintiff has sought for a decree of injunction, the identity of the pathway in respect of which the injunction is sought for has to be WPC.36032/08 3 determined. The question whether it is in existence or not is a matter to be decided by the court on the materials to be tendered by both parties after giving them reasonable opportunity to establish their respective case. There is no merit in the writ petition, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp