IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 WP(C).No. 30774 of 2008(L) -------------------------- PETITIONER/PETITIONER: ------------------------------------- AMMANKOL RAGHVAN, S/O AMBU, VEENUS, A.P.IX-628, P.O. ALAVIL,AZHEEKODE SOUTH AMSOM, ARAKOTTAN DESOM, KANNUR TALUK, KANNUR DISTRICT. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI. ABHILASH K.N RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. KOZHUMMAL PARAKKADAVATH RUGMINI AMMA, D/O KRISHNAN NAIR, AGED 56 YEARS, NO.OCCUPATION, VOLLORA AMSOM, KAKKARA DESOM, TALIPARAMBA TALUK. 2. THAZHIPPATH SASIDHARAN, S/O.T.V.SANKARA VARRIOR, AGED 43 YEARS, LIC AGENT, TALIPARAMBA AMSOM DESOM, NEAR AROTH TEMPLE BY GOVT. PLEADER ADV. SMT. BINDU R. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30774 / 2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: THE TRUE COPY OF THE PLAINT DATED 14/03/2006 IN O.S. NO.140/2006 OF THE MUNSIFF COURT THALIPARAMBA FILED BY THE PETITIONER. EXHIBIT P2: THE TRUE COPY OF THE COMMISSION REPORT DATED 31/03/2006 IN O. S. NO.140/2006 OF MUNSIFF'S COURT, THALIPARAMBA. EXHIBIT P3: THE TRUE COPY OF THE AFFIDAVIT IN I.A. N O.1957/2008 IN O.S. NO.140/2006 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, THALIPARAMBA. EXHIBIT P4: THE TRUE COPY OF THE COUNTER FILED BY THE 1ST RESPONDENT DATED 2/09/2008 IN I.A. in 957/2008 IN O.S. NO.140/2006. EXHIBIT P5: THE CARBON COPY OF THE ORDER DATED 4/09/2008 IN O.S. NO.140/2006 OF MUNSIFF'S COURT, THALIPARAMBA. /TRUE COPY/ P.A. TO JUDGE scm THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 30774 of 2008 ------------------------------ Dated this the 20th day of October, 2008 JUDGMENT Counsel takes notice for respondent. 2. Heard both sides. 3. Petitioner filed O.S. No. 140/2006 in the court of learned Munsiff, Thaliparamba for a decree for prohibitory injunction claiming that he has right of easement by way of prescription and necessity over the disputed way. Advocate Commissioner inspected the property and submitted report and sketch on 31/03/2006. While so, alleging that respondent obstructed the disputed way, petitioner filed I.A. No. 1957/2008 to remit the report to the Advocate Commissioner. Two prayers were made in I.A. No. 1957/2008; (1) to measure the plaint A and B schedule properties, and (2) to report about the alleged obstruction caused to plaint B pathway. Prayer was opposed by the respondent. Learned Munsiff dismissed the application vide Exhibit P5, order dated 4/09/2008 stating that remittance of report for reporting about the alleged obstruction would not help the petitioner W.P(c) No. 30774 /2008 2 since the suit is only for permanent injunction and the petitioner has not amended the plaint seeking direction to the respondent to remove the alleged obstruction. Learned Munsiff observed that remittance of the report for the purpose stated in the application is not necessary at that stage. Counsel for petitioner submitted that unless report is remitted and further report is obtained in the lines prayed for in I.A No.1957/2008, the dispute cannot be properly adjudicated. Counsel for respondents asserted that petitioner has no right over the schedule A property. It is also submitted that petitioner is not entitled to any relief. 4. If the alleged obstruction was made after the institution of the suit, it is not as if the court is powerless to grant relief including a direction to remove the alleged obstruction in case the contention of the petitioner regarding right of way is accepted. Therefore it is not as if the suit cannot proceed further without an amendment in the lines suggested in Exhibit P5 order. If on the other hand the alleged obstruction was prior to institution of the suit and in spite of that, no amendment is made in the plaint seeking appropriate reliefs, that is at the risk of the petitioner. Either way, it is not necessary to insist that W.P(c) No. 30774 /2008 3 before remittance of the report, petitioner had to amend the plaint. Viewed in that lines, the order under challenge cannot be sustained. Resultantly, this writ petition is allowed. Order dated 4/09/2008 in I.A.No.1957 of 2008 is set aside. That application will stand allowed. Learned Munsiff shall remit the report and sketch to the Advocate Commissioner as prayed for in I.A. No. 1957 of 2008. THOMAS P. JOSEPH, JUDGE scm