IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 2970 of 2010() ------------------------ OS.167/2004 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER: --------------- ACHIMOOSSANTAKATH ISMAIL, S/O.UMMER HAJI, AGED 47 YEARS, BUSINESS, RESIDING AT RAMANTHALI AMSOM AND DESOM, (P.O) RAMANTHALI. BY ADV. MR. MAHESH V RAMAKRISHNAN RESPONDENTS: --------------- 1. K.P.SHYAMALA, D/O.MEENAKSHI AMMA, DOCTOR, 2. M.MUKUNDAN NAMBIAR, H/O. IST DEFENDANT, DOCTOR, 3. THE SECRETARY, PAYYANNUR MUNICIPALITY, PAYYANNUR. R1 AND R2 RESIDING AT PAYYANNUR AMSOM AND DESOM, (PO) PAYYANNUR – 670 307. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- W.P.(C). No. 2970 of 2010 ------------------------------------------------------------ Dated this the 29th day of January, 2010. JUDGMENT The writ petitioner is the plaintiff in O.S. No. 167 of 2004 on the file of the Munsiff's Court, Payyannur. The said suit is for a perpetual injunction restraining the defendants from effecting construction by trespassing into the plaint schedule property and by violating the Building Rules. There was a temporary injunction granted and it was confirmed after hearing both sides. Thereafter, the suit itself was once dismissed for default and restored back to file. It is not clear whether while dismissing the suit, the court below had passed an order dismissing the application for temporary injunction in which case without restoring the application for temporary injunction, the temporary injunction which was in force till the date of dismissal of the suit will not stand revived automatically. Whatever that may be, the plaintiff/writ petitioner subsequently filed an application under Order XXXIX Rule 2A C.P.C alleging violation of the temporary injunction. A Commission was taken out. The report submitted by the Commissioner was twice remitted to him. As per I.A. No. W.P.(C) No. 2970/2010 : 2 1698 of 2008, the petitioner again wanted the report to be remitted to the Commissioner for allegedly omitting to note certain aspects. The court below as per Ext.P9 order has refused to remit the report to the Commissioner again. The court below has given valid reasons apart from the fact that the suit has been pending before that court from the year 2004 onwards. The petitioner can substantiate his contentions by adducing other evidence as well. I do not find any illegality or error of jurisdiction in Ext.P9 order passed by the Commissioner. It is high time that the suit itself was taken up for trial and disposed of. This Court sitting in the extraordinary jurisdiction under Article 227 of the Constitution of India, will be loath to interfere with the factual findings recorded by the trial court. This writ petition is accordingly dismissed. Dated this the 29th day of January, 2010. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 2970/2010 : 3