IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 WP(C).No. 14585 of 2009(O) -------------------------- OS.44/2008 of MUNSIFF COURT, VAIKOM .................... PETITIONER(S): ------------------------ MOLLY THOMAS, W/O. P.I.THOMAS, PUTHENPURACKAL HOUSE, KALLARA VILLAGE, VAIKKOM TALUK. BY ADV. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. RESPONDENT(S): --------------------------- KALLARA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KALLARA GRAMA PANCHAYATH, KALLARA (VAIKOM), KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.14585 of 2009 = = = = = = = = = = = = = = Dated this the 28 th day of May, 2009 JUDGMENT The petitioner, who is the plaintiff in O.S.No.44 of 2008 on the file of the Munsiff's Court, Vaikom challenges Ext.P5 order dated 17.10.20080 as per which the learned Munsiff has dismissed the application filed by the petitioner as I.A.No.1798/2008 for the issuance of a second Commission. The said suit is one for a perpetual injunction restraining defendants from trespassing into the plaint schedule property or from erecting permanent structures and for removal of obstruction caused by the defendants in the plaint schedule property. The petitioner had already taken out a Commission and there was also a report submitted by the Commissioner. The defendants filed a written statement wherein it was, inter alia, contended that the pathway relied on by the plaintiff is not in existence and that the plaintiff has an alternative pathway. It was at a time when the suit was listed for trial that the petitioner filed the present W.P.(c).No. 14585 of 2009 2 application on 16.10.2008 seeking the appointment of a second Advocate Commission to show that the stand taken by the defendant is not correct. The said application has been dismissed as per Ext.P5 order. 2. The question of disproving the defendant's contention that the pathway relied on by the plaintiff is not in existence and that the plaintiff has an alternative pathway will arise only if and when the defendant substantiates the said contention. So long as the said contention of the defendant remains in the realm of pleadings, there was no necessity for the plaintiff to file an application for 2nd Commission or the submission of a second report. The application was thus rightly dismissed by the court below. This writ petition is dismissed without prejudice to the right of the petitioner to seek appropriate reliefs if and when the defendant proves that the pathway relied on by the plaintiff is not in existence or that the plaintiff has an alternative pathway as stated in the written statement. Dated this the 28 th day of May, 2009. V. RAMKUMAR, JUDGE sj