IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 12970 of 2008(R) -------------------------- OS.324/2006 of MUNSIFF COURT, PUNALUR. .................... PETITIONER(S): ------------------------- 1. PADMAKSHA PANICKER,UNNIVILASOM VEEDU, ROSEMALA, KULATHUPUZHA, PATHANAMTHITTA DISTRICT 2. GANGADHARA KURUP, SARATH BHAVAN, ROSEMALA, KULATHUPUZHA, PATHANAMTHITTA DISTRICT. 3. MOHANAN, AKHIL NIVAS, ROSEMALA, KULATHUPUZHA, PATHANAMTHITTA DISTRICT. 4. SASI, BINDU BHAVAN, ROSEMALA, KULATHUPUZHA, PATHANAMTHITTA DISTRICT. BY ADVS. MR.RAM MOHAN.G., MR.G.P.SHINOD, MR.MANU V. RESPONDENT(S): --------------------------- JOY UDAYAN, VAYALIL MUDUMBIL VEEDU, ANAYARA MURI, KADAKAMPALLY, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.12970/2008 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.324 OF 2006. P2: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANTS IN O.S.324 OF 2006. P3: COPY OF COMMISSION APPLICATION (IA 2201 OF 2006) DTD. 26/10/2006. P4: COPY OF THE 1ST COMMISSION REPORT DTD. 14/11/2006. P5: COPY OF THE 2ND COMMISSION APPLICATION. P6: COPY OF THE OBJECTION SUBMITTED BY THE DEFENDANTS TO EXHIBIT P5. P7: COPY OF THE 2ND COMMISSIONER REPORT DTD. 15/01/2007. P8: COPY OF I.A.NO.1630 OF 2007. P9: COPY OF THE OBJECTIONS FILED BY THE PLAINTIFF TO EXHIBIT P8. P10: COPY OF THE ORDER DTD. 6/12/2007 IN I.A.1630 OF 2007. P11: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.37609 OF 2007 DTD. 18/12/2007. P12: COPY OF THE ORDER DTD. 26/02/2008 IN I.A.NO.1630 OF 2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.12970 OF 2008 (R) ----------------------------------- Dated this the 2nd day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i) to quash Ext.P12 order ii) to allow Ext.P8 commission application iii) to grant such other reliefs which are deemed just and proper in the nature and circumstances of the case. 2. Petitioners, four in number, are the defendants in O.S.No.324/2006 pending on the file of the Munsiff's Court, Punalaur. Respondent is the plaintiff in the suit, which is one for injunction both prohibitory and mandatory. At the instance of the plaintiff, a Commissioner visited the suit properties twice and after conducting local inspection on both occasions, he had filed two reports. The defendants also moved an application for appointment of a Commission, copy of which is produced as Ext.P8, in which, among others, they WPC.12970/08 2 sought for measurement of the suit properties with reference to the title deeds of the plaintiff and also the survey records. That application was initially allowed by the learned Munsiff, which was challenged by the plaintiff before this Court. This Court, disposing the writ petition moved by the plaintiff under Ext.P11 judgment, set aside the order of the court below and directed the Munsiff to consider Ext.P8 application afresh. The learned Munsiff after hearing the counsel on both sides, found that Ext.P8 application is devoid of any merit and the application moved by the defendants for measuring out the suit property was unwarranted since the suit property is shown to be lying within well defined boundary walls. Propriety and correctness of the order passed by the learned Munsiff, copy of which is produced as Ext.P12 is challenged in this writ petition by the defendants invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioners impeached the correctness of the order contending that in the nature of the disputes involved and defence raised in the written statement, identification of WPC.12970/08 3 the suit property is essential. Countering the arguments raised by the learned counsel for the petitioners, the counsel appearing for the respondent/plaintiff submitted that relief claimed in the suit is only injunction, both prohibitory and mandatory, and if at all there was any discrepancy or default on his part to identify the property, the plaintiff is bound to suffer and the attempt of the defendants in seeking measurement of the suit properties is mala fide as it is intended to prolong and protract the litigation. Having regard to the nature of the suit and the reliefs sought for, I find no impropriety in the order passed by the learned Munsiff dismissing the application moved by the defendants. If at all the identification of the property is not established by satisfactory evidence the plaintiff will suffer, and there is no need for measuring of the property as desired by the defendants in his commission application. Writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009