IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 6495 of 2009(O) ------------------------- AGAINST THE ORDER IN IA 1479/2008 IN OS.452/2003 of MUNSIFF COURT, OTTAPPALAM .................... PETITIONER(S): --------------- A.P.JOSE, S/O.A.O.PAULOSE @ PAILI, AYATHUPADATHU VEEDU, ELAMBULASSERY AMSOM, POBRA DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAMANUNNI MENON SRI.K.MOHANAKANNAN RESPONDENT(S): --------------- 1. A.P.GEORGE, S/O.AYATHUPADATH POULOSE @ PAILI, PRESENTLY RESIDING AT AYATHPADATHU VEEDU, PALLIKURUP P.O., THACHAMPARA VIA, MANNARKKAD TALUK, (NEAR AUP SCHOOL, POMBRA, POMBRA AMSOM DESOM, OTTAPPALAM TALUK). 2. BABY, S/O.CHACKO, VADAKKEDATHU VEEDU, ELAMBULASSERY AMSOM, POMBRA DESOM, NEAR KETTARALLADAVI, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.SANTHEEP ANKARATH FOR R1-2 SRI.V.C.MADHAVANKUTTY FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- W.P.(C).No.6495 of 2009 ------------------------------------ Dated this the 25th day of March, 2009 JUDGMENT The petitioner is the plaintiff in O.S.No.452 of 2003 on the file of the court of the Munsiff of Ottapalam. The suit was filed for permanent prohibitory injunction in respect of the plaint schedule property which is described as having an extent of 4.55 acres. The plaintiff filed an application for temporary injunction. Though the trial court granted temporary injunction, on appeal by the defendants, the appellate court vacated the order of injunction and dismissed the application for temporary injunction. 2. A Commissioner was appointed to inspect the property on the application filed by the plaintiff. The report was remitted to the same Commissioner. The Commissioner filed an interim report dated 1.11.2008 wherein he stated that the plaint schedule properties and properties of the defendants are lying on the slope of a steep hill and that the normal survey technique of the field measurement may not be possible. The Commissioner suggested that the service of the surveyors in the forest mini WPC No.6495/2009 2 survey department can be requested. The petitioner has filed objections to the interim report submitted by the Commissioner. The matter is pending before the court below as to what should be done on the interim report submitted by the Commissioner. 3. Alleging that the defendants have cut and removed certain trees and they are making attempts to cut and remove other trees, the petitioner filed I.A.No.1479 of 2008 for temporary injunction. The defendants have filed objections to the application. That application is also pending consideration. 4. The reliefs prayed for in the Writ Petition filed by the plaintiff are the following: (i) “to issue an appropriate writ order or direction directing the court of the Munsiff, Ottappalam to hear and dispose of the objections filed to the interim report filed by the Commissioner and to issue necessary directions to the Commissioner and to see that the plan and report is obtained within a time frame to be fixed by this Hon'ble Court and to direct the court of the Munsiff, Ottappalam, to dispose of the suit O.S.No.452 of 2003 within a time frame to be fixed by this Hon'ble Court. (ii) to issue an appropriate writ order or direction, directing the court of the Munsiff to hear and dispose of I.A.No.1479 of 2008 in O.S.No.452 of 2003 (Ext.P4), within a time frame to be fixed WPC No.6495/2009 3 by this Hon'ble Court; (iii) Award to the petitioner the costs of these proceedings and (iv) Grant such other and further reliefs as are just, proper and necessary or may be prayed for.” 5. In view of the fact that the interim report submitted by the Commissioner is pending consideration of the court below, it may not be feasible to direct the court to dispose of the suit. In so far as the relief No.(ii) is concerned, it is not in dispute that I.A.No.1479 of 2008 is pending disposal. The respondents/ defendants submitted that the application is not maintainable in view of the judgment in C.M.A.No.3 of 2003 by which the application for temporary injunction was dismissed. Any how, the application, namely, I.A.No.1479 of 2008 requires consideration and disposal. 6. It is submitted that the learned Munsiff of Ottapalam has been transferred to Mannarkad and that the Judicial Magistrate of First Class is in charge of the Munsiff. It is also stated that in view of the heavy work in the Magistrate’s court, it may not be possible for the learned Munsiff to have regular WPC No.6495/2009 4 sittings. 7. Taking into account the above facts and circumstances, the Writ Petition is disposed of directing the Munsiff Court, Ottapalam, to consider and dispose of I.A.No.1479 of 2008 expeditiously and at any rate on or before 31.5.2009. It is submitted by the learned counsel for the respondents that even for considering I.A.No.1479 of 2008, sometimes, it may become necessary to consider the Commissioner’s report in which event it may not be possible to dispose of the application before 31.5.2009. This is a matter which the court below may consider. The court below shall also expedite the consideration of the objections to the Commissioner’s interim report and shall pass appropriate orders. The Writ Petition is disposed of accordingly. K.T.SANKARAN, JUDGE csl