IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 22407 of 2010(O) -------------------------- IA NO.343/2010 IN OS.354/2009 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------- RAVI, AGED ABOUT 67, S/O. SANKARAN, CHEERAKKATTIL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE. BY ADV. SRI.K.T.SHYAMKUMAR SMT.M.S.KIRAN RESPONDENT(S): --------------- 1. BABUKUTTAN, AGED 41, S/O. RAGAVAN, THACHAMATTATHIL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE, PIN 686 664.. 2. RAGHAVAN, AGED 76, S/O. RAMAN, THACHAMATTATHIL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE, PIN 686 664.. 3. REKHA RAVI, AGED ABOUT 31, CHEERAKKATTIL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE, PIN 686 664.. 4. JOSEPH, AGED 79, S/O. MATHEW, VANAKKATTIL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE, PIN 686 664.. 5. CHERIAN, AGED 70, S/O. ULAHANNAN, CHAKKUMKARAMEL, PAZHOOR KARA, PIRAVOM VILLAGE, PIN 686 664.. ADV. SRI.LIJI.J.VADAKEDOM FOR R3 TO R5 SRI.M.N.SANJITH FOR R1 & R2 SRI.JAISON JOSEPH FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.22407/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.354/2009 EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED IN OS NO.354/2009 EXT.P3 TRUE COPY OF THE SKETCH AND REPOR SUBMITTED BY THE COMMISSION DATED 10.8.2009 EXT.P4 TRUE COPY OF AFFIDAVIT AND PETITION FILED BY THE PLAINTIFFS DATED 29.1.2010 EXT.P5 TRUE COPY OF THE WORK MEMO SUBMITTED BY THE PETITIONER EXT.P6 TRUE COPY OF OBJECTION FILED BY THE PLAINTIFFS DATED 27.5.2010 EXT.P7 TRUE COPY OF ORDER PASSED BY THE COURT BELOW DATED 29.5.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22407 of 2010 -------------------------------------- Dated this the 21st day of October, 2010. JUDGMENT This petition is in challenge of Ext.P7, order dated 29.05.2010 passed by the learned Munsiff, Muvattupuzha rejecting the work memo filed by petitioner/defendant No.1 while Advocate Commissioner was deputed to inspect the property. Respondent Nos.1 and 2 filed the suit for fixation of eastern, southern and northern boundary of plaint A schedule property and for prohibitory injunction against petitioner and respondent Nos.3 to 5. There was also a prayer for mandatory injunction to direct petitioner and respondent Nos.3 to 5 to remove the compound wall projecting into plaint B schedule. Petitioner filed written statement disputing identity of the schedule property. It is contended that the compound wall was constructed as per an agreement with respondent Nos.1 and 2 and that respondent Nos.1 and 2 are not entitled to get reliefs as prayed for. On 29.01.2010 respondent Nos.1 and 2 applied for the issue of a commission with the assistance of Surveyor. That application was allowed on 03.02.2010 and the case was posted for report of the Advocate Commissioner. In the meantime on 29.03.2010 petitioner filed Ext.P5, work memo to direct the Advocate Commissioner report on matters requested therein. That work memo was rejected by the learned Munsiff as per Ext.P7, order for the reasons that there was no application to receive the work memo and that matters requested for in the work memo are not relevant for the decision of the case. That order is WP(C) No.22407/2010 2 under challenge. Learned counsel for petitioner contended that it is necessary for a fair and just disposal of the suit and to adjudicate the dispute involved that matters requested for in the work memo are reported by the Advocate Commissioner. Learned counsel for respondent Nos.1 and 2 contended that all matters requested for in the first order appointing the Advocate Commissioner are already ascertained by him and hence it is not necessary to depute the Advocate Commissioner again to ascertain matters requested in Ext.P5, work memo. 2. I have been taken through the relevant records. On hearing learned counsel on both sides and perusing the records I find that item Nos.3 and 4 in Ext.P5, work memo can be directed to be ascertained by the Advocate Commissioner. Since the Advocate Commissioner has submitted only a preliminary report (as the learned counsel for petitioner submits and the Advocate Commissioner is yet to submit the final report in the matter) it is only just and proper that the Advocate Commissioner is directed to ascertain item Nos.3 and 4 in Ext.P5, work memo as well. Resultantly this petition is allowed to the extent that Ext.P7, order rejecting Ext.P5, work memo in toto is set aside and the Advocate Commissioner is directed to ascertain matters requested for as item Nos.3 and 4 in Ext.P5, work WP(C) No.22407/2010 3 memo. Additional batta if any payable to the Advocate Commissioner for ascertaining the said matters shall be fixed by the learned Munsiff and the same shall be paid by the petitioner. THOMAS P.JOSEPH, Judge. cks