IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 WP(C).No. 10863 of 2009(O) -------------------------- OS.254/2007 of PRL.M.C.KOZHIKODE-I .................... PETITIONER(S): ------------------------ 1. K.T. RAMESH, S/O. KALOOR, THOTTULI ACHUTHAN, OTHAYAMANGALAM, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 2. K.T. NISHA, D/O. KALOOR THOTTULI ACHUTHAN, OTHAYAMANGALAM, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT REPRESENTED BY THE POWER OF ATTORNEY HOLDER 1ST PETITIONER. BY ADV. MR.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): ---------------------------- E. DEEPASREE, D/O. NARAYANAN NAIR, VELAMKUDI PARAMBU, 'SOUPARNIKA', KOTTOOLI AMSOM DESOM, KOZHIKODE DISTRICT. BY ADVS. MR.R.SUDHISH, SMT.M.MANJU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2009 ALONG WITH WPC NO. 11936 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.10863/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF POWER OF ATTORNEY EXECUTED BY THE 2ND PETITIONER. P2: COPY OF PLAINT IN O.S.NO.254/07 ON THE FILE OF COURT OF MUNSIFF, KOZHIKODE. P3: COPY OF WRITTEN STATEMENT FILED BY THE 1ST DEFEDANT. P4: COPY OF WRITTEN STATEMENT FILED BY 2ND DEFEDANT. P5: COPY OF AFFIDAVIT IN SUPPORT OF I.A.NO.4016/07. P6: COPY OF I.A.NO.1267/07 DTD. 18/03/2008. P7: COPY OF ORDER DTD. 20/03/2009 IN I.A.NO.1267/07. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).Nos.10863 OF 2009 AND 11936 OF 2009 -------------------------- Dated this the 25th day of August 2009 ------------------------------------- JUDGMENT These two writ petitions are filed by the defendants in O.S No.254 of 2007 on the file of the Munsiff Court, Kozhicode. Common respondents in the petition are the plaintiffs in the above suit. Suit is one for declaration of right of easement by prescription and also necessity, and consequential injunction. The defendants resisting the suit claim has raised a counter claim in which they also sought for injunction both prohibitory and mandatory. Plaintiffs had filed an application for amending the plaint so as to seek an additional relief of mandatory injunction. A commissioner appointed by the court after conducting a local W.P.(C).Nos.10863 OF 2009 Page numbers AND 11936 OF 2009 inspection and measuring the property filed a report and plan. Pursuant to the objections raised to that report and plan, the court below remitted that report for fresh consideration. That order was passed on 20/09/2008. On the same day, according to the counsel for the petitioners, the application for amendment moved by the plaintiffs was also allowed. Thereafter the case was posted from time to time for the report of the commissioner. The commissioner filed his report on 18/02/2009. Then the court, it is submitted, proceeded to settle the issues and thereafter included the case in the list for trial. The defendants filed an additional written statement with a petition to receive that statement. The application so filed by the defendants was dismissed by the court below with the result the additional statement was also rejected. Ext.P7 is the order produced in W.P.(C) No.11936/2009. Order W.P.(C).Nos.10863 OF 2009 Page numbers AND 11936 OF 2009 so passed by the learned Munsiff declining to accept the additional written statement of the defendants is challenged in the above mentioned W.P.(C). The defendants have also raised some objections to the commission report and moved for remitting it for fresh consideration. That application was also dismissed by the learned Munsiff vide Ext.P7 order produced in W.P.(C) No.10863/2009. Correctness of that order is impeached in the above W.P.(C). 2. I heard the counsel on both sides. From the submissions made and taking note of the facts and circumstances presented, I find no opportunity was provided to the petitioners / defendants after an amendment of the plaint sought by the plaintiffs was allowed to file additional written statement. On that solitary ground itself, Ext.P7 order passed by the learned Munsiff which is W.P.(C).Nos.10863 OF 2009 Page numbers AND 11936 OF 2009 challenged in W.P.(C) No. 10863/2009 is liable to be set aside, and it is ordered accordingly. The court below is directed to receive the additional written statement filed by the defendants in answer to the amended plaint. If any additional issue arises consequent to the acceptance of the additional written statement needless to point out the court has to arise such issue before proceeding with the trial of the case. So far as the challenge raised against the request made by the defendants for remittance of the commission report which is impugned in W.P.(C) No.10863/2009, I make it clear that irrespective of Ext.P7 order impugned in that petition, the defendants shall be given an opportunity to take steps to examine the commissioner and the surveyor to substantiate their objections at the trial, and, in case they are able to establish the report and plan suffer from any infirmity, court below has to pass appropriate W.P.(C).Nos.10863 OF 2009 Page numbers AND 11936 OF 2009 orders to cure such infirmities. Ext.P6 application moved by the defendants shall be treated as their objections to the commission report by the defendants. Subject to the above observations, the writ petitions are closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv