IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 24853 of 2010(O) -------------------------- OS.24/1996 of II ADDITIONAL MUNSIFF COURT,KOZHIKODE-II .................... PETITIONER(S): --------------- 1. NARAYANANKUTTY NAIR, CHEKKAPPARAMBIL, NELLIKKODU AMSOM DESOM, KOZHIKODE TALUK. 2. ASOKAN, EDAKKALATHIL, PARATHERI AMSOM DESOM, KOZHIKODE TALUK. 3. JANARDANAN, KARAKKUNNUMMAL, NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK. 4. GEETHA, MUTHUVADATHU, CHOWAYOOR AMSOM DESOM, KOZHIKODE TALUK. 5. MOHAN, CHERIYAMVEETTIL, NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK. 6. BALAKRISHNAN, VIRUPPIL, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.G.UNNIKRISHNAN SRI.K.SANEESH KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE REVENUE DIVISIONAL OFFICE, KOZHIKODE. BY GOVT. PLEADER SHRI P.R.JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24853 of 2010 -------------------------------------- Dated this the 10th day of August, 2010. JUDGMENT Plaintiffs in O.S.No.24 of 1996 of the court of learned Additional Munsiff-II, Kozhikode are the petitioners before me. They are challenging order dated 19.02.2010 passed on Ext.P5 and Exts.P8 and P9 orders. Petitioners instituted the suit way back in 1996 for a decree for prohibitory injunction against demolition of a structure situated in the plaint schedule property. They came with the case that the property belonged to the late Chandukutty and while he was in possession and enjoyment, the State acquired 1.13 acres for formation of Calicut-Mavoor road as per award No.16 of 1961 (Ext.P1) and in the year 1964 Calicut Corporation granted permission to Chandukutty to construct building in the remaining land having a lesser extent than three cents (as per Ext.P2). It is while so, that respondents initiated proceedings against petitioners and others under the Kerala Land Conservancy Act for demolition of structure in the remaining portion of property which is scheduled in the plaint. Petitioners applied for issue of a commission to identify the property but that was rejected by the learned Munsiff which was set aside by this Court as per Ext.P3, judgment in W.P.(C) No.31938 of 2006 and accordingly an Advocate Commissioner was appointed. Commissioner filed Ext.P4, report with which petitioners were not satisfied. They filed Ext.P5, application (I.A.No.1146 of 2009 to remit Ext.P4, report to the Advocate Commissioner with direction to WP(C) No.24853/2010 2 supply the omission after rectifying the mistake. Learned Munsiff allowed that application on 01.07.2009 and accordingly, petitioners deposited commission batta. According to the petitioners Advocate Commissioner did not visit the property, nor was any intimation given to them. No interim report also was filed by the Advocate Commissioner. On 07.11.2009 petitioners represented in court that Commissioner has not visited the property and thereon court issued notice to the Commissioner who appeared in court on 15.01.2010 and reported that petitioners are no co-operating with her to identify the property. On 19.02.2010 vide order passed on Ext.P5, application court below re-called intimation and direction given to the Advocate Commissioner and closed I.A.No.1146 of 2009 (to remit the report to the Advocate Commissioner). On 14.07.2010 petitioners filed I.A.No.2931 of 2010 (Ext.P6) to appoint the same Commissioner or any other advocate to inspect the property and submit a report and plan taking into account all objections in I.A.No.1146 of 2009. On 19.07.2010 petitioners filed I.A.No.3024 of 2010 (Ext.P7) with a delay of 119 days seeking review of order dated 19.02.2010 on Ext.P5, application referred to above. Learned Munsiff condoned the delay on payment of cost of Rs.500/- but I.A.No.3024 of 2010 (Ext.P7) was dismissed as per Ext.P8, Order. Consequently, I.A.No.2931 of 2010 (Ext.P6) was also dismissed as per Ext.P9, order dated 27.07.2010. I have heard learned counsel for petitioners and learned Government Pleader who took notice for respondents. WP(C) No.24853/2010 3 3. It is contended by learned counsel that the statement of Advocate Commissioner that petitioners did not co-operate with her in executing the commission warrant is not correct and no notice was given by her to them about any proposed inspection. According to the learned counsel petitioners were moving from pillar to pillar to get property measured with reference to the plan prepared at the time of acquisition of property in the year 1961 and as directed by the learned Munsiff while allowing Ext.P5, application on 01.07.2009. It is also contended by learned counsel that respondents had not produced the said plan at any point of time either in court or before the Advocate Commissioner. Learned counsel states that one reason for dismissal of Ext.P7, application is the delay in filing that application. But that delay was condoned by the learned Munsiff on payment of cost of Rs.500/- and in that circumstances it was not justifiable to dismiss I.A.No.3024 of 2010. Learned Government Pleader appearing for respondents contended that the suit is pending from 1996 onwards and that there was inaction on the part of petitioners. 4. Order on Ext.P5, application shows that on 01.07.2009 learned Munsiff ordered that Ext.P4, report and plan will be remitted to the Advocate Commissioner for further inspection and report . It is on the statement of Advocate Commissioner about non co-operation of petitioners that the order was re-called on 19.02.2010. Thereafter it ofcourse took five months to the petitioners to file Ext.P6, application for appoint of (the same) Commissioner or another Commissioner to inspect the property and prepare report and plan and WP(C) No.24853/2010 4 Ext.P7, application for review was filed after 119 days after the order dated 19.02.2010. No doubt, there is delay on the part of the petitioners. But it is seen that the delay in filing Ext.P7, application has been condoned by the learned Munsiff on payment of cost. After having decided to condone the delay obviously for the reason that learned Munsiff thought that Ext.P7, application has to be heard on merit there is no point in Ext.P7 being dismissed for the reason of delay. Petitioners have stated about the mistake on the part of clerk of counsel in noting entries in the A diary which caused the delay. I am not very much impressed by that explanation. But as I stated, delay in filing Ext.P7, application has been condoned by the learned Munsiff. In the circumstances considering nature of dispute involved between parties I am persuaded to think that petitioners must be given an opportunity to get Ext.P4, report remitted to the Advocate Commissioner. I am therefore inclined to allow the request. Since the impugned order on Ext.P5, application is being reviewed as requested for in Ext.P7, application it is not necessary to entertain I.A.No.2931 of 2010. Resultantly this Writ Petition is allowed in the following lines: i. Ext.P8, order is set aside, I.A.No.3024 of 2010 is allowed and the impugned order dated 19.02.2010 on Ext.P5, application will stand reviewed. ii. In view of the above order it is not necessary to set aside Ext.P9, order on Ext.P6, application (I.A.No.2931 of 2010). iii. Learned Munsiff is directed to appoint the same Advocate WP(C) No.24853/2010 5 Commissioner or another Commissioner as is found suitable to execute the order dated 01.07.2009. Both sides shall render necessary assistance to the Advocate Commissioner. iv. It is made clear that if there is non co-operation on the part of petitioners in Advocate Commissioner executing the work it will be open to the learned Munsiff to close Ext.P5, application and proceed with the suit as provided under law. THOMAS P.JOSEPH, Judge. cks