IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).NO. 14803 OF 2010(O) -------------------------- AGAINST I.A. NO.988 OF 2010 IN OS.452/2007 OF ADDL.MUNSIFF COURT, KANNUR .................... PETITIONER(S): ----------------- M.HAREESHAN, AGED 46 YEARS, S/O.KARUNAN, PRANAVAM, P.O.MAMBA, KANNUR DISTRICT. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): -------------------------- 1. MANDOOL CHAKKARA VINAYAKRISHNAN, S/O.KRISHNAN, AGED 58 YEARS, MANDOOL HOUSE, CHIRAKKAL AMSOM, DESOM, KANNUR. 2. SUSHANTH CHAMBRA MUNDACHALIL, S/O.BHASKARAN, AGED 45 YEARS, HALIL HOUSE, KAPPAD, KANNUR. 3. AJITH CHIRAYIL MEETHALAPURAYIL, S/O.NARAYANAN, AGED 37 YEARS, PRASANNAM, KOTTILA, EZHOME, KANNUR. 4. PADMANABHAN KUNNUMMAL VENGALAN, S/O.ACHUTHAN NAIR, AGED 59 YEARS, SHABARI, PANTHAKKAL, NEW MAHE. 5. M.V.SURESH BABU, S/O.M.V.KRISHNAN VAIDYAR, AGED 52 YEARS, KAMBIL, P.O.KOLACHERRY, KANNUR. 6. THULASI BUILDERS, OPPOSITE COLLECTORATE, P.O.CIVIL STATION, KANNUR, REP. BY MANAGING PARTNER, MANDOOL CHAKKARA VINAYAKRISHNAN, S/O.KUMARAN, MANDOOL HOUSE, CHIRAKKAL AMSOM, CHIRAKKAL DESOM, KANNUR. ADV. SRI.K.V.SOHAN FOR R1 SMT.SREEJA SOHAN.K. FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.452 OF 2007. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 2.11.2007 IN I.A. .NO.2846 OF 2007 IN O.S. NO.452 OF 2007. EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT. EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A. NO.3164 OF 2008 IN O.S.. NO.452 OF 2007. EXHIBIT P5 TRUE COPY OF THE COMMISSION REPORT AND PLAN. EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.. NO.988 OF 2010 IN O.S. NO.452 OF 2007. EXHIBIT P7 TRUE COPY OF THE COUNTER STATEMENT TO EXT.P6. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 31.3.2010 IN I.A. NO.988 OF 2010 IN O.S. NO.452 OF 2007. EXHIBIT P9 TRUE COPY OF THE COMMISSION REPORT AND MEMO SUBMITTED BY THE COMMISSIONER. RESPONDENTS' EXHIBITS ----------------------------------- NIL THOMAS P.JOSEPH, J. ==================================== W.P(C) No.14803 of 2010 ==================================== Dated this the 17th day of May, 2010 J U D G M E M T Plaintiff in O.S. No.452 of 2007 of the court of learned Munsiff, Kannur seeks to challenge Ext.P8, order refusing a further remission of the report and plan submitted by the Advocate Commissioner. Plaintiff/petitioner claims 0.70% fractional interest in plaint A and B schedule shop rooms situated in plaint C schedule Shopping Complex, rest of the property belonging to respondent No.1/defendant No.1. Petitioner sued for a permanent prohibitory injunction and there was an application for temporary injunction which was allowed in favour of the petitioner as per Ext.P2, Order. Not satisfied with the report of the Advocate Commissioner petitioner filed application to remit Ext.P3, report. Advocate Commissioner after remission filed Ext.P5, report. Then there was Ext.P6, application again to remit the report stating that certain encroachments allegedly made by respondent No.1 in the common amenities have not been reported by the Advocate Commissioner. That application was dismissed as per Ext.P8, order which is under challenge in this Writ Petition. Learned counsel for petitioner W.P(C) No.14803 of 2010 -: 2 :- submits that information called for as per Ext.P6 was necessary for a fair and just disposal of the case. It is contended by learned counsel for petitioner that item No.3 among the facts to be noted in Ext.P4, application was not considered by the Advocate Commissioner. Learned counsel for respondent No.1 would contend that purpose sought to be achieved by remission can be achieved by a comparison of the original plan with the plan and report already submitted by the Advocate Commissioner. 2. I have gone through Ext.P8, order where learned Munsiff has stated that on a perusal of the report of the Advocate Commissioner no encroachment in the parking area in the basement floor could be noticed. Petitioner wanted the report to be remitted on the ground that Advocate Commissioner has not mentioned anything about the alteration made in C schedule. But it is very clearly reported by the Advocate Commissioner that he could not see any amenities provided in the second and third floors of the building and hence court below held that it is not necessary to remit the report. 3. Having gone through the order under challenge and other materials I do not find reason to interfere with the impugned order. I make it clear that if in the course of the trial W.P(C) No.14803 of 2010 -: 3 :- any further information necessary for a just and proper disposal of the case is required to be called for through the Advocate Commissioner it will be open to the petitioner to file appropriate application for that purpose and if any such application is filed, Ext.P8, order shall not stand in the way of learned Munsiff from considering that application and passing appropriate orders. With the above observation, Writ Petition is dismissed THOMAS P. JOSEPH, JUDGE. Vsv