IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 WP(C).No.16161 of 2008 (Y) ---------------------------------- IA.2664/2008 IN OS.2029/1998 of II ADDL.M.C.EKM .................... PETITIONER: --------------- M.A.LAILA BEEVI AGED 57 YEARS, W/O. ABDUL JABBAR, KATTISSERY HOUSE, THRIKKANNARVATTOM,DESOM, ERNAKULAM VILLAGE. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID RESPONDENTS: ------------------ 1. P.H.HAFSA SHAMSUDDIN, D/O. MOIDU, JASMINE BUNGALOW, S.R.M.ROAD,KOCHI-18 2. ABDUL RAHIM, S/O. MUHAMMED KUNJU ALISSERY WARD, ALAPPUZHA. 3. P.K.AYSHAKUTTY, W/O. R.P. MUHAMMEDKUTTY, PANIKKAVELIL, KOTTILINGAL, MANNARKKAD, PALAKKAD. 4. RAJU MALAYIL, S/O. GEORGE, S.R.M.ROAD ERNAKULAM. 5. R.DILEEP, S/O. RAMAN MENON, PUTHANVEETTIL, MANIKKAMANGALAM, ALUVA. 6. SAJAN S/O. GEORGE, MALAYIL HOUSE, ELOOR SOUTH, PARUR TALUK. WP(C).No.16161 of 2008 (Y) 7. E.K.SETHU,S/O. VELAYUDHAN PILLAI, EDAKKATHALATHU HOUSE, ELOOR, PARUR. 8. ASWATHI ESTATE AND PROPERTIES, REP. BY ITS MANANGING PARTNER P.K.NARAYANAN NAIR, S/O. NARAYANA KURUP, PIZHAVOOR HOUSE, NANTHYATHUKUNNAM KARA, PARUR VILLAGE. 9. ABDUL KARIM, S/O. KOCHUNNY, KOLLAMPARAMBIL, ELOOR. ADV. SRI.ALIAS M.CHERIAN FOR R1-3 SRI.BABU KARUKAPADATH FOR R5-6 SMT.M.A.VAHEEDA BABU FOR R6 SRI.ABRAHAM K.JOHN FOR R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.16161 of 2008 (Y) APPENDIX PETITIONER'S EXTS:- EXT. P1:- TRUE COPY OF THE INTERLOCUTORY APPLICATION NAMELY I.A. NO.2664/08. EXT.P2:- CERTIFIED COPY OF THE ORDER DT.25/03/08 IN I.A. NO.2664/08 IN O.S. NO.2029/98 OF MUNSIFF COURT (III), ERNAKULAM. EXT.P3:- THE COPY OF THE ORDER DT.31/03/08 IN WPC.10513/08. ................. K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.16161 of 2008 ------------------------------------------------ Dated this the 2nd day of December, 2008 JUDGMENT The Writ Petition is filed assailing Ext.P2 order passed by the Munsiff refusing to issue Commission in O.S.2029/98 on the application of the petitioner/plaintiff. 2. The petitioner/Laila Beevi is the plaintiff in O.S.2029/98 on the file of the Munsiff's Court, Ernakulam. It is common case that the said case was ordered to be tried along with O.S.830/95, O.S.1696/96 and O.S.1699/96. I.A.2664/08 was filed by the petitioner in O.S.2029/98 to issue an urgent commission claiming for a consolidated report and plan drawn to scale showing the properties scheduled to the plaint in O.S.830/95 O.S.1696/96 and O.S.1699/96 with the pathways claimed by the plaintiffs therein. The learned Munsiff vide Ext.P2 order considered the W. P. C. No.16161 of 2008 -2- request so made and dismissed the I.A. refusing to issue a commission as prayed for and hence, this Writ Petition assailing the said Ext.P2 order. 3. It is not in dispute that O.S.830/95 O.S.1696/96 and O.S.1699/96 are suits filed against the petitioner/plaintiff claiming right of way through her property having an extent of 38 and odd cents. The court below has observed that in O.S.2029/98 at the instance of the petitioner herself a commission was issued vide I.A.7927/1998 and the Commissioner filed report and thereafter another Commissioner was appointed and that Commissioner filed report dt.15/09/07 after measurement of the properties and that is Ext.C5 in the suit. Similarly in O.S.830/95 vide I.A.3389/95 Ext.C1 commission report was got down and thereafter in the said suit itself another Commissioner inspected the W. P. C. No.16161 of 2008 -3- property and filed Ext.C2 report on 23/10/96. Ext.C3 is another commission report obtained conducting measurement of the properties with the help of Thaluk Surveyor. In O.S.1696/96 a Commission was issued with the assistance of a Thaluk Surveyor and Ext.C4 Commission Report was obtained on 23/10/99. The court has observed that all the above commissions were being issued after hearing both sides and that the points sought to be reported in the present application are also reported by previous commissions and that the suits which are ordered to be jointly tried were listed for trial on more than two occasions and that the petitioner had no case then that a commission to get down a consolidated report is necessary as is prayed for now. The court has further observed that there is no reason stated for appointment of another Commissioner and that the available data and details are W. P. C. No.16161 of 2008 -4- sufficient for a fair and just disposal of all the connected cases that are being tried along with O.S.2029/98 and that the Commissioners have given all the relevant details on all material aspects so that the request for appointment of another Commissioner or the same Commissioner for submission of a consolidated report is totally out of place. The commission reports so marked already in the case examining PWs.1 to 4 are Exts.C1 to C5. 4. It is further observed that this Court has vide judgment in W.P.C.5554/08 dt.15/02/08 directed the trial court to include the case in the list for trial in the last week of March and accordingly, all the suits which are being jointly tried were listed for trial on 22/03/08 and the present commission application is filed on the day on which the case stood posted for trial in the list on 22/03/08. The W. P. C. No.16161 of 2008 -5- court has further observed that the petitioner has no case that the two commission reports obtained in her own case has to be set aside. Hence, so long as those reports are there and are not set aside, it is improper to issue a fresh commission. 5. It is submitted before me by the counsel for the respondent who appears for the plaintiffs in the other connected suits that ex parte commissions were issued in O.S. Nos.830/95 and 1696/96 and in 2029/98 and thereafter again commission was issued with the assistance of a surveyor in all those suits and that commission issued in O.S. 2029/98 for measurement of the property was even subsequent to order of joint trial of all the suits and that a fresh commission again for measurement and for noting the details would be most inappropriate. W. P. C. No.16161 of 2008 -6- 6. Counsel for the respondents also submits that the plaintiffs in all the connected suits who claim pathway through the property of the plaintiffs in O.S.2029/98 namely Smt.Laila Beevi who is the petitioner herein are claiming the same pathway through the property of the petitioner and it is not that they are claiming different pathways for their use. 7. In the light of the discussions made above, I am of the view that there is no merit in this Writ Petition and that Ext.P2 order passed by the court below dismissing I.A. 2664/08 for issuance of a fresh commission has only to be confirmed. 8. In the result, I dismiss this Writ Petition. K.P.BALACHANDRAN, JUDGE kns/-