IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 9023 of 2010(O) ------------------------------------- (O.S.NO.186/2006 OF MUNSIFF COURT, TIRUR) .................... PETITIONER: ------------------- MOIDEEN KUTTY, S/O. KIZHAKKAM KUNNATH KOYAKKUTTY, REPRESENTED BY REGISTERED POWER OF ATTORNEY AGENT, WIFE, KOLANGARA VEETTIL MARIYAMU, THIRUR TALUK, THRIKKANDIYUR AMSOM, KOMARAMANGALAM DESOM, P.O TIRUR PIN- 676 101. BY ADVS. MR.K.RAMACHANDRAN, MR.S.SREEDEV. RESPONDENT: ---------------------- SAIDALAVI, S/O. KIZHAKKAM KUNNATH MOIDEEN KUTTY, THIRUR TALUK, THRIKKANDIYUR AMSOM, KOMARAMANGALAM DESOM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 9023 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 18th day of March, 2010 JUDGMENT In this petition under Article 227 of the Constitution of India the petitioner assails Ext.P6 order. 2. Petitioner is the defendant in O.S. No.186 of 2006 on the file of the Munsiff's Court, Tirur. The suit is filed by the respondent for setting out a way to his property through the petitioner's property. The petitioner filed I.A. No.164 of 2010 for remitting commissioner's report and sketch dated 8-1-2010. According to him, the Commissioner has gone wrong in preparing the sketch and in not giving necessary details. The complaint is that the measurement now made is not in terms of the survey measurements. Matters also mentioned in the petition, according to the petitioner, the Commissioner ought to have verified. According to him, the W.P.(C) No. 9023/2010 2 court below went wrong in rejecting the prayer for remitting the commissioner's report. 3. It appears that the plaintiff claimed a right of way through the property owned by the defendant who is the petitioner herein. The defendant disputed the existence of way and submitted that the plaintiff has no right to use any portion of his property. 4. The learned counsel for the petitioner invites attention of this Court to observations made in paragraphs 14, 15 and 16 of the impugned order and it is pointed out that these observations may cause difficulties and may prove detrimental to the petitioner at the time of hearing the suit. So that safeguard needs to be made in that regard. 5. There is substance of the case of the petitioner. But what ever that be, the petitioner will have an opportunity at the time of trial to establish that the commissioner's report and plan are not acceptable. 6. The court below may not justify the observations made in paragraphs 14, 15 and 16. However, those W.P.(C) No. 9023/2010 3 observation can be treated only a tentative for the purpose of disposing of the E.A. 7. There can be no doubt that these aspects are to be considered at the time of trial. It will sufficient to give a direction to the trial court to dispose of the suit untrammelled by any of the observations made in Ext.P6 order especially in paragraphs 14, 15 and 16. 8. In the result, this petition is disposed of as follows:- a) The Munsiff's Court, Tirur is directed to dispose of O. S. No.186 of 2006 untrammelled by any of the observations made in Ext.P6 order, especially paragraphs 14, 15 and 16, while disposing of I.A. No.164 of 2010 and based evidence adduced in the case. b) The existence of way will be determined on the basis of evidence adduced on trial. c) If the petitioner establishes during the trial that commissioner's report and plan are not W.P.(C) No. 9023/2010 4 acceptable, he shall have at liberty to seek fresh commission report and plan. P.BHAVADASAN, JUDGE. mn.