IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 OP(C).No. 3660 of 2011(O) ------------------------- OS.148/2011 of PRINCIPAL MUNSIFFC COURT, KASARAGOD .................... PETITIONER: ---------------------- M.A. ABDULLA, S/O. MOIDEENKUTTY, AGED 68 YEARS, R/AT BANGRAKUNNU, KASARAGOD KASBA VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------------------- DR. K.T. JANARDHANA, S/O. APPAKUNHI, MEDICLA PRACTITIONER, R/AT ADKATHBAIL, ADKATHBAIL VILLAGE, KASARAGOD.P.O., KASARAGOD DISTRICT-671 314. BY ADVS. SRI.T.MADHU, SRI.M.PRADEEP RAO. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3660/2011 O APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE AGREEMENT DATED 1/12/2004. EXT.P2 TRUE COPY OF THE PLAINT DATED 7-6-2011 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD. EXT.P3 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. 148/11 DT. 4-8-11 ON THE FILE OF THE MUNSIFF COURT KASARAGOD. EXT.P4 TRUE COPY OF THE I.A. 1817/11 IN O.S. 148/11 DATED 3-10-2011 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD. EXT.P5 TRUE COPY OF THE COUNTER IN I.A. 1817/2011 DATED 13-10-2011. EXT.P6 TRUE COPY OF THE ORDER IN I.A. 1817/2011 DATED 14-10-2011. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3660 of 2011 -------------------------------------- Dated this the 9th day of December, 2011. JUDGMENT Plaintiff in O.S.No.148 of 2011 of the court of learned Munsiff, Kasaragod is the petitioner. That is a suit for specific performance of an agreement dated 01.12.2004 providing passage to the petitioner and for mandatory injunction. Respondent contested the suit on various grounds. Petitioner filed Ext.P4, application – I.A.No.1817 of 2011 under Order XXVI, Rule 9 and Section 151 of the Code of Civil Procedure (for short, “the Code”) to issue a survey commission to report on matters requested in Ext.P4. That application was dismissed by Ext.P6, order for the reason that the suit is for specific performance of an agreement and for mandatory injunction, petitioner has only produced a sketch showing the lie of the property and pathway and that for considering the relief prayed for in the plaint it is not necessary to prepare a plan through the Advocate Commissioner. That order is under challenge. 2. Learned counsel contends that in view of the nature of relief prayed for in the suit which includes specific performance as well as mandatory injunction it is necessary to have a proper identification of the pathway referred to in the plaint to avoid unnecessary contentions in the course of execution. OP(C)No.3660/2011 2 3. Learned counsel for respondent contended that the agreement itself is not enforceable and that the suit also is not maintainable since an earlier suit for the same relief was dismissed and the appeal was withdrawn. 4. I need not at this stage, consider whether petitioner is entitled to the reliefs prayed for or, the suit is maintainable. Those are matters which the trial court has to decide at the appropriate stage. Now the question is only whether request for issue of commission has to be allowed or not. 5. Normally in a suit for specific performance it is not necessary to appoint a survey commission since the question the court has to consider is whether the agreement if any executed between the parties is enforceable or not. But that principle cannot and need not be applied in every case of specific performance. Here is a case where according to the petitioner, himself and respondent agreed to provide a pathway (to the petitioner) and executed a registered agreement for the said purpose as Ext.P1, dated 01.12.2004. It is relevant to refer to Ext.P4, agreement as well. It is stated that parties have agreed to provide a permanent right to the petitioner to use the way marked ‘R’ in the plan annexed to the agreement and passing through the south-eastern side of residential plot of petitioner for passage of human beings, motor car, lorry, etc leading to the plot of petitioner marked as R.S.49/1D, 1E and 1F in the plan annexed, from the eastern boundary – the National Highway. 6. In the nature of right allegedly agreed to be conveyed as per OP(C)No.3660/2011 3 Ext.P1, agreement, it is appropriate that a survey commission is appointed to identify the pathway at site with reference to the plan appended to the agreement for sale. On going through Ext.P4, I find that other matters requested for in that application are also to be ascertained for a proper adjudication of the dispute with clear identity of passage provided in the agreement allegedly executed. In that view of the matter I am inclined to think that in this case a survey commission is required. Appointment of survey commission is necessary for identification of the way agreed to be conveyed so that a decree adjudicating all disputes involved can be passed in this case. In the circumstances I am inclined to allow the application. Resultantly this Original Petition is allowed. Ext.P6, order is set aside and Ext.P4, application will stand allowed. Learned Munsiff is directed to appoint an Advocate Commissioner assisted by a Surveyor to report in respect of matters referred to in Ext.P4 at the expense of petitioner to be fixed by the learned Munsiff. Learned Munsiff is directed to expedite the proceedings. I make it clear that I have not expressed any opinion regarding the contentious issues involved in the suit. THOMAS P.JOSEPH, Judge. cks