IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WP(C).No. 30729 of 2009(O) -------------------------- OS.1193/2008 of PRL.M.C.,IRINJALAKUDA .................... PETITIONER: --------------- ALICE, AGED 46, W/O.NJERINJAMPILLY JOHNY, NANDIPULAM VILLAGE, NANDIPULAM DESOM, MUKUNDAPURAM TALUK. BY ADV.MR.P.N.RAMAKRISHNAN NAIR MR.P.VISWANATHAN RESPONDENTS: --------------- 1. JOHNY, AGED ABOVE 56, S/O.KRUICHIPARAMBIL LONAPPAN, NANDIPULAM VILLAGE, MUKUNDAPURAM TALUK. 2. ELSY, AGED ABOVE 51, W/O.JOHNY, KURICHIPARAMBIL, NANDIPULAM VILLAGE, MUKUNDAPURAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.30729 of 2009 - O --------------------------------- Dated this the 30th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records from the Munsiff Court, Irinjalakkuda, pertaining to the file O.S.NO.1193 of 2008. ii) To set aside Exhibit p6 order and order to depute an advocate commission with the assistance of a surveyor, as prayed for in Exhibit P4 petition.” 2. Petitioner is the plaintiff in O.S.No.1193 of 2008. Suit is one for declaration as to the width of B schedule pathway and for an injunction, both prohibitory and mandatory. Prohibitory injunction was sought for to restrain the defendants from obstructing the use and enjoyment of plaint B schedule pathway by the plaintiff. Mandatory injunction was applied for canvassing a case the defendant has put up a foundation for boundary wall encroaching upon the B schedule pathway and it is liable to be removed. An advocate commissioner, at the instance of the plaintiff, after local inspection, filed a report and a rough sketch, which are Ext.P2 and P2(a). Among other reliefs plaintiff also W.P.(C).No.30729 of 2009 - O 2 sought for measuring out the property of the defendants to substantiate their case that some portions of B schedule pathway had been encroached upon by the defendants in putting up boundary and compound wall. Advocate commissioner in his report stated that without survey records and title deeds it was not possible to measure out the property of the defendants. The plaintiff moved another application for determining some additional points by the commissioner including measuring the property of the defendants. Ext.P4 is that application, and it was objected to by the defendants. Learned Munsiff dismissed that application vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner/plaintiff. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. 4. At the time of hearing, learned counsel for the petitioner submitted that the plaintiff propose to move an W.P.(C).No.30729 of 2009 - O 3 amendment application to incorporate the property of the defendants also in the plaint schedule with the necessary allegations raised in the plaint so that the relief canvassed in the suit can be fairly adjudicated by placing the necessary materials before the court. That application as and when moved may be directed to be considered untrammelled by the observations made in Ext.P6 order, is the submission of the counsel. Ext.P1 is the copy of the plaint. Though the plaintiff has sought for measuring out the property of the defendants no schedule description of the property of the defendants is incorporated in the plaint. When that be so, there appears to be some force in the submission made by the counsel that the schedule of the property of the defendants has to be incorporated in the plaint to claim the reliefs raised in the suit. In case any amendment application is moved by the petitioner/plaintiff as indicated above, the court below shall consider and dispose it on merits untrammelled by any of the observations made in Ext.P6 order. I make it clear that I am not expressing any opinion on the merit of that application. W.P.(C).No.30729 of 2009 - O 4 Writ petition is disposed of as above. Hand over a copy of the judgment to the counsel for the petitioner on usual terms and send a copy to the court concerned. S.S.SATHEESACHANDRAN, JUDGE. bkn/-