IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 OP(C).No. 1079 of 2010(O) CMA.16/2009 OF SUB COURT, PERUMBAVOOR I.A.NO.2032/2010 IN OS.64/2009 OF MUNSIFF'S COURT, PERUMBAVOOR PETITIONER --------------------- P.K.MATHAI, RETIRED GOVT.EMPLOYEE, AGED 57 ,S/O.KURIAKOSE. POYAKATTIL HOUSE, IRINGOLE KARA,PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK BY ADV. SRI.G.KRISHNAKUMAR SRI.P.H.SHAJI (THRIKKAKARA) SRI.TITTO THOMAS RESPONDENT: --------------- P.K.ELDHOSE,S/O.KURIAKOSE, AGED 46, POLICE CONSTABLE,POIKKATTIL HOUSE, IRINGOLE KARA,PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK - 686 001. THIS O.P. (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.64 OF 2010 ON THE FILE OF THE MUNSIFF'S COURT, PERUMBAVOOR. EXT.P2 TRUE COPY OF I.A.NO.1253/2009 IN O.S.NO.64/2009 OF THE MUNSIFF'S COURT, PERUMBAVOOR. EXT.P3 TRUE COPY OF THE ORDER DATED 19.6.2010 IN CMA.NO.16/2009 OF THE SUB COURT, PERUMBAVOOR. EXT.P4 TRUE COPY OF THE ORDER DATED 13.8.2010 IN I.A.NO.1253/2009 IN O.S.NO.64/2009. EXT.P5 TRUE COPY OF THE IA.NO.2032/2010 IN O.S.NO.64/2009 ON THE FILE OF THE MUNSIFF'S COURT, PERUMBAVOOR. EXT.P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P5 APPLICATION. EXT.P7 TRUE COPY OF THE ORDER DATED 6.12.2010 IN I.A.NO.2032/2010 IN O.S.NO.64/2009 ON THE FILE OF THE MUNSIFF'S COURT, PERUMBAVOOR. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1079 OF 2010 O ------------------------------------------------------ Dated this the 10th day of February, 2011 JUDGMENT The petitioner filed O.S.No.64 of 2009 on the file of the Munsiff's Court, Perumbavoor against the respondent for prohibitory injunction restraining the defendant from trespassing upon the plaint A to D schedule properties or from committing damage to the “kayyalas” or compound wall or from removing soil from the property or from destroying its lateral support. There is also a prayer for mandatory injunction to restore the boundary in its original position by constructing a retaining wall. 2. In the suit, a Commissioner was appointed, who filed a report. The petitioner filed I.A.No.2032 of 2010 (Ext.P5) under Order XXVI Rule 9 of the Code of Civil Procedure, to appoint a Commissioner for the purpose of inspecting the property with the assistance of a Civil Engineer and for noting the particulars mentioned in the application. The matters to be reported are: (a)to ascertain whether the lateral support to the compound wall was lost and (b) whether it is necessary to construct a retaining wall and if so, the expenses required. O.P.(C) NO.1079 OF 2010 O :: 2 :: 3. The petitioner also filed I.A.No.1730 of 2010 for an interim mandatory injunction directing the defendants to construct a retaining wall in order to get lateral support to the compound wall. 4. The court below dismissed both the aforesaid applications by the common order dated 6.2.2010 (Ext.P7) which is under challenge in this Original Petition. 5. The application for Commission was dismissed by the court below holding that there is already a commissioner's report and the Commissioner has reported almost all the particulars except the cost of construction of the retaining wall. The Advocate Commissioner is not an expert. In I.A.No.2032 of 2010, the petitioner has also submitted a panel of Engineers. I am of the view that the court below should have appointed an expert commission, in the facts and circumstances of the case, so that a complete and final adjudication of the disputes involved in the case could be had. The Commissioner who has filed the report can be deputed for the second inspection as well, who shall conduct the inspection along with the Engineer to be appointed by the court. O.P.(C) NO.1079 OF 2010 O :: 3 :: 6. Accordingly, the order impugned, in so far as it relates to I.A.No.2032 of 2010, is set aside. The court below shall appoint one of the experts mentioned in the panel submitted by the petitioner. The expert (Engineer) shall inspect the property along with the Commissioner already appointed in the suit. The necessary expenses for the inspection shall be met by the petitioner/plaintiff. 7. In so far as I.A.No.1730 of 2010 is concerned, learned counsel for the petitioners submitted that the petitioners do not wish to press the contentions in respect of I.A.No.1730 of 2010 and, therefore, the order passed by the court below in that application is not being challenged. Therefore, the order passed by the court in I.A.No.1730 of 2010 shall remain in force. The Original Petition is partly allowed as above. (K.T.SANKARAN) Judge ahz/