IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 WP(C).No. 21198 of 2008(W) ----------------------------------------- (O.S.NO.411/2004 OF MUNSIFF'S COURT, HOSDRUG) PETITIONERS: ---------------------- 1. KADEEJA UMMA, D/O.ALIYUMMA, KUTHIRUMMAL HOUSE, THALICHALAN, SOUTH TRIKARIPUR VILLAGE, P.O.ELAMBACHI, HOSDRUG TALUK, KASARAGOD DISTRICT. 2. FATHIMA, D/O.KADEEJA UMMA, KUTHIRUMMAL HOUSE, THALICHALAN, SOUTH TRIKARIPUR VILLAGE, P.O.ELAMBACHI, HOSDRUG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: ------------------------- 1. THYNERI THEKKEPURAYIL KUNHIRAMAN, S/O.KELU, THALICHALAN, SOUTH TRIKARIPUR VILLAGE, P.O.ELAMBACHI, HOSDRUG TALUK, KASARAGOD DISTRICT. 2. SAKEENA, D/O. KADEEJA UMMA, KUTHIRAMMAL HOUSE, THALICHALAN, SOUTH TRIKARIPUR VILLAGE, P.O.ELAMBACHI, HOSDRUG TALUK, KASARAGOD DISTRICT. 3. MOHAMMED ROUBEEN, S/O.KADEEJA UMMA, KUTHIRAMMAL HOUSE, THALICHALAN, SOUTH TRIKARIPUR VILLAGE, P.O.ELAMBACHI, KASARAGOD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.21198 OF 2008 =========================== Dated this the 14th day of July, 2008 JUDGMENT Petitioners are defendants 1 and 3 in O.S.411/2004 on the file of Munsiff Court, Hosdurg. First respondent is the plaintiff and other respondents the other defendants in the suit. Suit was originally filed for permanent prohibitory injunction restraining first petitioner, the sole defendant from trespassing into the plaint A schedule property and also from widening the pathway which passes through plaint B schedule property. After filing of the written statement, at the instance of first respondent, a Commission was issued. Commissioner submitted a report and plan dated 7.3.2007 demarcating plaint A schedule property as plot A B C D F and the disputed property as plot D E F D which is part of the plaint A schedule property. The suit was W.P.(C)21198/08 2 subsequently dismissed for default and was later restored. After it was restored, first respondent filed I.A.4720/2007 for amendment of the plaint claiming decree for recovery possession of the disputed portion which is to be amended as plaint C schedule property. That application was allowed. Additional defendants were also impleaded thereafter. First petitioner filed an additional written statement disputing the title on 15-11- 2007. Other defendants also filed written statement. Petitioners thereafter filed I.A.2126/2008 an application for appointment of a Commission to identify plaint C schedule property to prove that it is part of their property. First respondent did not file any objection. Under Ext.P8 order, learned Munsiff dismissed the application. This petition is filed under Article 227 of the Constitution of India challenging Ext.P8 order. 2. For the reasons stated hereafter and in view of the order being passed, I do not find it necessary to issue notice to the first respondent W.P.(C)21198/08 3 plaintiff in this Writ Petition. 3. Learned Munsiff dismissed the petition on two grounds. Firstly it was found that there is already a report submitted by the Commissioner earlier and without setting aside that report another Commissioner cannot be appointed. The second reason is that suit is in the special list and defendants have no case that identification made by the Commissioner is not correct. 4. Learned counsel appearing for petitioners pointed out that when the Commissioner originally inspected the property and submitted the report, suit was one only for injunction and in the nature of the case, it is not necessary to identify the property of defendant. It was also pointed out that additional defendants were only impleaded later and the scope of the suit was changed to recovery of possession. It was argued that in such circumstance, question whether the disputed property forms part of the property of first respondent or that of the petitioners is the actual question to be decided in the suit and therefore W.P.(C)21198/08 4 identification of the property is necessary. Learned counsel also pointed out that an objection was filed to the original report by first petitioner who was the sole defendant at that time stating that Commissioner has not properly identified the property and property is to be identified with the assistance of a Taluk Surveyor. 5. In such circumstance, learned Munsiff was not justified in dismissing the application for appointment of the Commissioner on the ground that Commissioner has originally submitted a report. Even if without setting aside that report another Commissioner cannot be appointed, learned Munsiff could have directed the same Commissioner to file a further report without setting aside the first report treating as the report is remitted. Secondly, when the suit is only one for injunction question of identification of the property of defendants is not that much relevant. But when recovery possession of a portion of the property which is found to be in their possession is sought for, question of identification of the disputed W.P.(C)21198/08 5 property whether it forms part of the property of first respondent or the defendants is relevant. In such circumstance, learned Munsiff was not justified in dismissing the application on those grounds. It was also pointed out that the amendment application itself was filed only on 1.11.2007 and the additional written statement was filed on 15.11.2007 and I.A.2126/08 was filed on 20.6.2008 and in such circumstance learned Munsiff was not justified in dismissing the application on the ground that the petition is belated. 6. Ext.P8 order is quashed. Learned Munsiff is directed to reconsider I.A.2126/2008 in the light of the observations made herein and pass appropriate order in accordance with law after hearing the parties. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- W.P.(C)21198/08 6 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006 ANTONY DOMINIC JUDGE tpl/- J.B.KOSHY & M.SASIDHARAN NAMBIAR, JJ. --------------------- CRL.R.P.NO. /97 --------------------- ORDER MAY,2006