IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 9476 of 2009(O) AGAINST THE ORDER IN IA 892/09 IN OS.352/2005 OF MUNSIFF'S COURT, CHITTUR PETITIONER(S): --------------- ARUMUGHAM, AGED 54 YEARS, S/O.PAZHANISWAMY KOUNDER, NATTUKALKALAM, NATTUKAL P.O., NALLEPILLY VILLAGE, CHITTUR TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT: --------------- KANNAN @ MURALIDHARAN, S/O.CHAMI, THAZHATHEPADAM, NALLEPILLY VILLAGE, CHITTUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 9476 OF 2009 O ------------------------------------------------------ Dated this the 24th March, 2009 JUDGMENT The plaintiff in O.S.No.352 of 2005, on the file of the Munsiff's Court, Chittur, is the writ petitioner. The suit was filed by him for permanent prohibitory injunction. The dispute is regarding an alleged pathway on the western side of the plaint schedule property. While the defendant says that there is a motorable pathway, the petitioner says that there is no such pathway. The properties are paddy fields. A Commissioner was appointed, who filed a report and sketch dated 2.9.2005. Written statement was filed by the defendant on 24.10.2005. 2. The suit was listed for trial. At that time, the petitioner/plaintiff filed Ext.P3 application dated 17.3.2009 to appoint a Commissioner to inspect the property with reference to the old survey records. In the affidavit accompanying the application, the petitioner stated that in the written statement mention is made about a resurvey plan and the defendant contends that a particular sub W.P.(C) NO.9476 OF 2009 :: 2 :: division marked in the resurvey plan is the alleged pathway claimed by him. According to the plaintiff, there was no pathway within his property and that the pathway could at best be in the property situated on the western side. According to him, for elucidating these facts with reference to the resurvey records, it is necessary to appoint a Commissioner for inspection of the property. 3. The court below dismissed the application on the ground that it is highly belated and that the application is filed only when the case was posted in the list. It was also noticed by the court below that the petitioner can adduce other evidence to prove his case. 4. I do not think that the court below has committed any error of jurisdiction in dismissing the application. The present application for appointment of a Commissioner is made only in 2009. The affidavit shows that appointment of the Commissioner is necessitated because of the averments in the written statement. The written statement was filed in 2005. The explanation offered by the petitioner is that the counsel who was appearing earlier was changed and the necessity of appointing a Commissioner was realised only when the present counsel studied the case. The W.P.(C) NO.9476 OF 2009 :: 3 :: reasons stated by the petitioner are not sufficient for allowing the application. The court below was justified in dismissing the application. However, dismissal of the application would not preclude the Court from considering the question as to whether an inspection by the Commissioner is necessary, at the time of trial. This is not a right which the petitioner has but a discretion which the Court, if it thinks fit, could be exercised. With the above observations, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/