IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 WP(C).No. 34425 of 2009(O) -------------------------- {OS.16/2008 of MUNSIFF COURT, KOLENCHERRRY} .................... PETITIONER(S): --------------- VELAYUDHAN, S/O.KOCHUKANNAN, CHOIKKARA MOLETH HOUSE, VADAYAMPADI, AIKKARANADU SOUTH VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.GEORGE SEBASTIAN SRI.EGY.N.ELIAS RESPONDENT(S): --------------- 1. PAVITHRAN, S/O.KUNJAN, KANJIRAKKATTU VEETTIL, CHOIKKARAMOLETH, VADAYAMPADI, AIKKARANADU SOUTH VILLAGE, ERNAKULAM DISTRICT. 2. KUNJAN @ PALLIYAN, S/O.AYYAPPAN, KANJIRAKKATTU VEETTIL, CHOIKKARAMOLETH, VADAYAMPADI, AIKKARANADU SOUTH VILLAGE, ERNAKULAM DISTRICT. ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34425 of 2009 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S 16/2008 OF THE MUNSIFF COURT, KOLENCHERRRY. EXT.P2: TRUE COPY OF THE REPORT DATED 14.01.2008 SUBMITTED BY VILLAGE OFFICER, AIKKARANADU. EXT.P3: TRUE COPY OF THE COMMISSIONER'S REPORT DATED 26.03.2008 IN IA 69/2008 IN OS 16/2008 EXT.P4: TRUE COPY OF THE COMMISSERIONER'S REPORT DATED 02.05.2008 IN IA 106/2008 IN OS 16/208 EXT.P5: TRUE COPY OF THE APPLICATION (IA 276/2009 IN OS 16/2009) EXT.P6: TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS. EXT.P7: TRUE COPY OF THE ORDER DATED 23.10.2009 IN IA 276/2009 IN OS 16/2008. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. ------------------------------------------------ W.P.(C).No.34425 of 2009 ----------------------------------------------- Dated this the 22nd day of January, 2010 JUDGMENT The writ petition is filed seeking the following reliefs: “1. To issue a writ of certiorari calling for the records leading to Ext.P7 and to quash the same. 2. Allow Ext.P5 application filed by the petitioner before the Court below. 3. To grant such other reliefs as this Hon'ble Court deems fit.” 2. The petitioner is the plaintiff in O.S.No.16/08 on the file of the Munsiff's Court, Kolencherry. The suit is one for declaration of the right of easement over a pathway described as B schedule and for injunction, both prohibitory and mandatory, and the respondents are the defendants. An application moved by the plaintiff for appointment of a commission to ascertain some matters for determination of the disputes involved, was dismissed by the learned Munsiff by Ext.P7 order. Propriety and W.P.(C).No.34425 of 2009 :: 2 :: correctness of Ext.P7 order is challenged in this writ petition, invoking the supervisory jurisdiction of this court. 3. Notice given. The respondents have entered appearance. I heard the counsel on both sides. 4. A perusal of Ext.P7 with reference to the submissions made by the counsel on both sides, it appears, that the court below has not taken into account that the suit has been filed seeking a declaration of the right of easement over a pathway. Ext.P7 order shows that the court below has given unmerited consideration to the defences canvassed by the defendants while considering the merit of the commission application moved by the petitioner/plaintiff. The defendants have contended that B schedule property was not in existence and it was so reported by the advocate commissioner who conducted inspection twice over the property is the view expressed by the court in Ext.P7 for dismissing the commission W.P.(C).No.34425 of 2009 :: 3 :: application. It has been brought to my notice that when the advocate commissioner visited at the first instance, a pathway in the property of the defendants was identified, but later on his second visit, on the request of the defendants, the features of the pathway had been found obliterated. When that be the case, it is a matter for adjudication whether the plaint B schedule pathway was in existence as and when the lis commenced before the court and whether it has been tampered subsequently. Needless to pint out, at the stage when the court is considering the merit of a commission application which, after all, is intended to gather materials available at the site to enable the court to adjudicate the disputed issues in a proper and fair manner, a court should not weigh the merit of the case pleaded by the plaintiff or defence raised by the defendants as that has to be done only in the trial, affording parties to lead evidence with respect to their W.P.(C).No.34425 of 2009 :: 4 :: case. Identification of B schedule pathway in the defendants' property, even assuming that the features of such pathway had been obliterated after the commencement of the suit by having the measurement of the defendants' property in the given facts of the case and the disputed questions involved, it appears, is necessary for a fair disposal of the suit on merits. True, the plaintiff has not produced the copy of the title deed of the defendants' property to enable such measurement. Whether he should be called upon to produce such copy to enable the identification is also a matter to be considered by the court. I am not expressing any opinion on the points raised for determination in the commission application of the petitioner/plaintiff. What are the points to be determined by appointing a commission have to be considered by the court with reference to the disputed questions arising for adjudication in the suit. At any rate, W.P.(C).No.34425 of 2009 :: 5 :: dismissal of the commission application by Ext.P7 order, on the reasons stated by the court, cannot be approved. Ext.P7 order is set aside. Learned Munsiff is directed to consider Ext.P5 application afresh, taking note of the observation made above and pass appropriate orders on such application, in accordance with law. The writ petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy//