IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 36615 of 2007(H) ------------------------------------- PETITIONER : ------------------ MUHAMMED @ KUTTIPPA, S/O.KOONAM PARAMBIL LATE MOIDUNNI, KAPPUR AMSOM DESOM, KAPPUR (POST), OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS : ---------------------- 1. ABDULLA HAJI, S/O.MUNDAROTTU KUNHAPPU HAJI, KAPPUR (POST), OTTAPALAM TALUK, PIN-679 552. 2. HASSAN, S/O.KOONAM PARAMBIL HYDRU HAJI, KAPPUR (POST), OTTAPALAM TALUK, PIN-679 552. 3. IBRAHIM, S/O.KOONAMPARAMBIL MUHAMMED, DO. DO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36615 of 2007(H) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: TRUE COPY OF PLAINT IN O.S.NO.33/2005 DATED 17.02.2005 FILED BY THE PETITONER HEREIN BEFORE THE MUNSIFF-MAGISTRATE'S COURT, PATTAMBI EXT.P2: TRUE COPY OF ORDER DATED 05.10.2005 IN I.A.NO.878 OF 2005 IN O.S.NO.33 OF 2005 PASSED BY THE MUNSIFF-MAGISTRATE'S COURT, PATTAMBI EXT.P3: TRUE COPY OF JUDGMENT DATED 06.08.2007 IN WP(C) NO.31154 OF 2005 PASSED BY THIS HON'BLE COURT EXT.P4: TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.NO.500 OF 2005 AND DATED 30.05.2005 FILED BY THE RESPONDENTS HEREIN BEFORE THE MUNSIFF-MAGISTRATE'S COURT, PATTAMBI EXT.P5: TRUE COPY OF COUNTER FILED BY THE PETITIONER HEREIN AND DATED 14.06.2005 IN I.A.NO.500 OF 2005 BEFORE THE MUNSIFF- MAGISTRATE'S COURT, PATTAMBI EXT.P6: TRUE COPY OF ORDER DATED 13.11.2007 IN I.A.NO.500/2005 IN O.S.NO.33 OF 2005 PASSED BY MUNSIFF - MAGISTRATE'S COURT, PATTAMBI EXT.P7: TRUE COPY OF SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER AND DATED 21.03.2005 IN O.S.NO.33 OF 2005 ON THE FILE OF THE MUNSIFF - MAGISTRATE'S COURT, PATTAMBI EXT.P8: TRUE COPY OF REPORT DATED 21.03.2005 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.NO.33 OF 2005 ON THE FILE OF THE MUNSIFF - MAGISTRATE'S COURT PATTAMBI -TRUE COPY- P.A. TO JUDGE pac M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 36615 OF 2007 ............................................ DATED THIS THE 9th DAY OF JULY, 2008 JUDGMENT Plaintiff in O.S.33 of 2005 on the file of Munsiff Court, Pattambi is the petitioner. Defendants are respondents. Suit was filed for permanent prohibitory injunction, restraining defendants from trespassing into the plaint schedule property or reducing any portion of the property by widening the width of the way. In the suit, respondents/defendants filed I.A.500 of 2005, an application for appointment of Commission to construct a laterite padavu to demarcate the southern boundary varambu of plaint schedule item No.2. Under Ext.P6 order, learned Munsiff allowed the application. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Though notice was served on respondents 1 and 2 personally, they did not appear. Notice on 3rd respondent was effected by publication. None of the respondents appeared. 3. Learned counsel appearing for petitioner was heard. When the question to be decided in the suit include the claim raised by defendants with regard to the width of the way, which lies to the south of the plaint schedule property, learned Munsiff WP(C) 36615/2007 2 was not justified in appointing a Commission and thereby allowing defendants to construct a boundary wall to the way, which is a matter to be decided in the suit. In such circumstances, Ext.P6 order is quashed. Learned Munsiff is directed to dispose the suit as expeditiously as possible. M.SASIDHARAN NAMBIAR, JUDGE lgk/-