IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 OP(C).No. 2345 of 2011(O) ------------------------- OS.236/2004 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER: --------------------- BALACHANDRA PANICKER, AGED 63 YEARS, S/O.SANKARAN KUNCHI, KUMMANOD MADOM, KUMMANOD KARA, PATTIMATTOM VILLAGE. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SMT.SMITHA GEORGE RESPONDENTS: -------------------- 1. KAVUKUTTY KUNJAMMA, W/O.KESAVA KAIMAL, KUMMANOD MADOM, KUMMANOD KARA, PATTIMATTOM VILLAGE-683 562. 2. KESAVA KAIMAL, S/O.PURUSHOTHAMAN ILAYATH, KUMMANOD MADOM, KUMMANOD KARA, PATTIMATTOM VILLAGE-683 562. 3. PURUSHOTHAMA KAIMAL, S/O.KESAVA KAIMAL, KUMMANOD MADOM, KUMMANOD KARA, PATTIMATTOM VILLAGE-683 562. 4. RAJENDRA KAIMAL, S/O.KESAVA KAIMAL, KUMMANOD MADOM, KUMMANOD KARA, PATTIMATTOM VILLAGE-683 562. 5. BALACHANDRA KAIMAL, S/O.KESAVA KAIMAL, KUMMANOD MADOM, KUMMANOD KARA, PATTIMATTOM VILLAGE-683 562. 6. PRASANNAKUMARI, D/O.KESAVA KAIMAL, KUMMANOD MADOM, KUMMANOD KARA, PATTIMATTOM VILLAGE-683 562. ADV. SMT.K.GIRIJA FOR R1,2,4,6 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2345 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE JUDGMENT IN W.P(C).NO.30361 OF 2008 DTD 23.05.2009 EXT.P2 : COPY OF I.A.NO.435 OF 2010 FILED BY THE RESPONDENTS DTD 25.02.2010 EXT.P3 : COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.435 OF 2010 DTD 12.07.2010 EXT.P4 : COPY OF THE ORDER DTD 02.07.2011 IN I.A.435 OF 2010 PASSED BY THE LEARNED MUNSIFF, PERUMBAVOOR RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2345 of 2011 --------------------------------------- Dated this 24th day of August, 2011 JUDGMENT Petitioner is the defendant in O.S.No.187 of 2004 filed by the respondents/plaintiffs in the Court of learned Munsiff, Perumabavoor for injunction and other reliefs. Petitioner, in turn filed O.S.No.236 of 2004 in the same Court against respondents, also for decree for prohibitory injunction against removal of a gate and obstructing his enjoyment of a pathway. In O.S.No.187 of 2004 the Advocate Commissioner submitted a report which was sought to be set aside by the respondents. That request was rejected which was challenged in W.P(C).No.30361 of 2008. This Court disposed of the writ petition by Ext.P1, judgment where it was directed that without recording evidence the request of writ petitioners (respondents herein) for measurement of the properties in the way they requested cannot be allowed and accordingly, the writ petition was disposed of. In the meantime, O.S.No.236 of 2004 was dismissed against which petitioner filed A.S.No.192 of 2007. That appeal was allowed and the matter was remitted to the trial court for fresh disposal with opportunity to identify the property by survey demarcation and giving both sides O.P(C).No.2345 of 2011 -: 2 :- opportunity to adduce evidence. Thereafter, in O.S.No.236 of 2004 petitioner filed I.A.No.1550 of 2009 for appointment of an Advocate Commissioner for identification of the suit property involved in that suit. That application was allowed. Respondents requested permission to file work memo. Learned Munsiff directed respondents to file the work memo within 10 days from the date of the order. The work memo was filed beyond the permitted time. Hence respondents filed I.A.No.1838 of 2009 to receive the work memo. That application was allowed and the work memo was received. In the meantime the Advocate Commissioner submitted report answering points requested by the petitioner/plaintiff in O.S.No.236 of 2004 but observing that there was no direction of ascertaining matters requested for in the work memo. Thereon respondents filed I.A.No.435 of 2010 (in O.S.No.236 of 2004) to remit the report and plan to the Advocate Commissioner to ascertain matters referred to in the work memo as well. That application was objected as per Ext.P3, but, allowed by the learned Munsiff as per Ext.P4, order, which is under challenge in this original petition. 2. Learned Senior Advocate arguing for petitioner has raised two objections to Ext.P4, order viz; that even if matters requested for in the work memo are to be ascertained, a O.P(C).No.2345 of 2011 -: 3 :- remission of the report already filed is not required and what is required is only to ascertain matters requested for and permitted in the work memo and secondly; that, at any rate, such matters requested to be ascertained in the work memo which goes against the direction in Ext.P1, judgment of this Court cannot be allowed which would amount to indirectly circumventing Ext.P1, judgment. 3. Learned counsel for respondents submit that respondents filed an application for joint trial of the two suits where, contention taken up by the petitioner is that properties are different and hence a joint trial is not required. Learned Munsiff allowed joint trial which is challenged at the instance of petitioner. It is also argued when I.A.No.1838 of 2009 was allowed by the learned Munsiff receiving the work memo, there was no challenge to that order. It is only when respondents sought remission of the report (in O.S.No.236 of 2004) by I.A.No.435 of 2010 (Ext.P2) that the present objection is raised. It is submitted that this Court while disposing of Ext.P1 was not considering the report and work memo in O.S.No.236 of 2004. 4. I have gone through Ext.P1, judgment of this Court. It is not disputed that it related to measurement of the property in O.S.No.187 of 2004 and the question whether the report filed in O.P(C).No.2345 of 2011 -: 4 :- O.S.No.187 of 2004 was liable to be remitted as contended by the respondents. That writ petition did not concern the request made by petitioner/plaintiff in O.S.No.236 of 2004, I.A.No.1550 of 2009 filed by the petitioner in that suit for appointment of Advocate Commissioner or the matters requested by the respondents to be ascertained as per the work memo. Nor did Ext.P1, judgment prevent respondents from filing a work memo in O.S.No.236 of 2004. When petitioner filed I.A.No.1550 of 2009 in O.S.No.236 of 2004, it was open to the respondents to file a work memo to get matters which they thought are relevant for a decision in O.S.No.236 of 2004. I must also bear in mind that in Ext.P1, judgment this Court was only considering whether on the facts and circumstances (in O.S.No.187 of 2004) request of respondents to remit the report should be allowed or not. I am inclined to hold that Ext.P1, judgment does not prevent the respondents from filing a work memo in O.S.No.236 of 2004. 5. Moreover when learned Munsiff permitted respondents to file work memo in O.S.No.236 of 2004 when I.A.No.1550 of 2009 was allowed or, when that work memo was received as per order on I.A.No.1838 of 2009, there was no challenge to the said orders. It is only when respondents filed I.A.No.435 of 2010 to remit the report, which is only a O.P(C).No.2345 of 2011 -: 5 :- consequence of allowing the work memo of respondents, and I.A.No.435 of 2010 was allowed that an objection is raised that allowing matters requested for in the work memo to be ascertained will amount to circumventing the directions contained in Ext.P1, judgment. In the circumstances stated above, I am not inclined to accept the contention that ascertaining matters requested in the work memo would run counter to Ext.P1, judgment. 6. The next question is whether the report in O.S.No.236 of 2004 is to be remitted as requested by the respondents vide I.A.No.435 of 2010. The grievance of respondents is that the Commissioner, in spite of learned Munsiff allowing I.A.No.1838 of 2009 did not report on matters requested in the work memo. For that, a remission of the report (in O.S.No.236 of 2004) is not required. What is required is only that Advocate Commissioner shall ascertain matters requested in the work memo filed by the respondents as accepted by the learned Munsiff as per order on I.A.No.1838 of 2009 and submit report and plan (if necessary). It is ultimately for the learned Munsiff to decide on evidence which report and plan are to be acted upon for deciding the disputed questions. O.P(C).No.2345 of 2011 -: 6 :- Resultantly this original petition is disposed of directing that it is not necessary to remit the report and plan in O.S.No.236 of 2004 to the Advocate Commissioner; instead it is sufficient that the Advocate Commissioner ascertained matters requested for in the work memo filed by the respondents (in O.S.No.236 of 2004) and submit report and plan. I make it clear that it will be open to the parties to prefer their objection to the report and plan submitted by the Advocate Commissioner on such grounds as are available to them. (THOMAS P JOSEPH, JUDGE) Sbna/-