IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 7287 of 2010(O) ------------------------------------ AGAINST THE ORDER DATED / / IN IA.419/2010 IN OS.556/2008 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER(S): ----------------------- 1. NARAYANAN, S/O.KARUMPAN, AGED 83, MALAYATTIL NIKARTHIL FROM VEZHAKKATTUCHIRA, PANAVALLY VILLAGE, PANAVALLY MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. VELAYUDHAN, S/O.KARUMPAN, AGED 80, DO. DO. BY ADV. DR.V.N.SANKARJEE RESPONDENT(S): ------------------------- 1. ROY M.MATHEW, S/O.MATHEW, AGED 58, CHAIRMAN, COPPICO KERALA RESORTS (P) LTD., APARTMENT NO. 50, M.R.SQUARE, D.H.ROAD, KOCHI-17. 2. K.EASWARAN PILLAI, S/O.P.K.NAIR, AGED 53, APARTMENT NO.52, M.R.SQUARE, D.H.ROAD, KOCHI-17, (COPPICO KERALA RESORTS (P) LTD.) 3. MANAGING DIRECTOR, COCHIN SERVICE, FORT KOCHI, KOCHI-1. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- WP(C) No.7287 of 2010-O ------------------------------------- Dated 8th March 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the petitioners challenge Ext.P1 order by which their application for issuance of a Commission was dismissed by the Court below. 2. The petitioners were the plaintiffs in OS No.556/08 before the Additional Munsiff's Court, Cherthala. The suit was one for injunction restraining the defendants or anybody claiming under them from forcibly removing or damaging the plaint schedule stake nets. The allegation was that the defendants were unauthorisedly interfering with the means of income of the plaintiff. It is alleged that due to the acts committed by the defendants, their livelihood was affected. It is also alleged that the defendants have constructed certain structures in order to affect their right of making livelihood out of the stake nets. WPC 7287/10 2 3. The defendants filed a written statement denying the averments in the plaint. According to them, the suit was a frivolous one. It appears that a Commission was taken up on an earlier occasion and a report was obtained. Subsequently, when the suit was listed for hearing, the petitioners moved IA No.419/10 for issuance of a Commission seeking to have the property measured based on a licence. The Court below dismissed the said IA holding that the prayers made by the petitioner cannot be allowed. It was held that the petitioner filed the petition only when the suit was listed for trial, which was only to protract the disposal of the suit. The Court below also held that nowhere in the pleadings, there was any whisper as to the existence of any licence and that the earlier Commissioner had already ascertained the facts, sought by the petitioner. I feel that the order passed by the Court below is only just and fair. No grounds are made out warranting interference with the order. However, in case the Court below during trial finds that the existing report is unhelpful and the WPC 7287/10 3 petitioners feel that for proper adjudication of the issues involved in this case, a Commission is absolutely necessary, they may move the Court below for the said relief. Reserving the liberty of the petitioners to do so, this Writ Petition is dismissed. P.BHAVADASAN, JUDGE sta WPC 7287/10 4