IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 26980 of 2009(O) --------------------------------------- OS. NO.137/2009 OF ADDL. MUNSIFF COURT, KASARAGOD. .................... PETITIONER: ------------------- RASIYA, W/O. B.M. ABOOBACKER, MOOLADUKKAM HOUSE, MULIYAR VILLAGE & POST, KASARGOD TALUK & DISTRICT. BY ADV. MR.P.K.MUHAMMED. RESPONDENT: ---------------------- MUHAMMED KUNHI, S/O. HASSAN KUTTY, MOOLADUKKAM HOUSE, MULIYAR VILLAGE & POST, KASARAGOD TALUK. BY ADV. MR.JAWAHAR JOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26980/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT O.S. 137/09 FILED BEFORE THE MUNSIFF'S COURT, KASARAGODE. EXT.P.2: COPY OF THE COMMISSION REPORT AND SKETCH PREPARED AND FILED BY THE ADVOCATE COMMISSIONER DTD. 26/05/2009. EXT.P.3: COPY OF THE AMENDMENT APPLICATION I.A. NO. 1245/09 FILED IN O.S. 137/2009. EXT.P.4: COPY OF THE COMMISSION APPLICATION I.A. NO. 1424/2009. EXT.P.5: COPY OF THE ORDER DTD. 20/08/2009 IN I.A. NO. 1424/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.26980 of 2009 - O --------------------------------- Dated this the 17th day of November, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.137 of 2009 on the file of the Munsiff Court, Kasargode. Suit is one for injunction and the respondent, the defendant. Suit claim was resisted by the defendant filing written statement in which among other contentions the description of the plaint A and B schedule were also disputed as incorrect. Plaintiff with the suit moved an application for appointment of a commission to ascertain certain matters and that being allowed, the commissioner after conducting local inspection filed a report with rough sketch. The defendant thereafter moved another commission application, but, that was declined. Pursuant thereto, the plaintiff moved an application for amendment of the plaint to incorporate some allegations that over B schedule way he has got a right of prescriptive easement and necessity. That amendment application was allowed. After allowing of the amendment application, plaintiff moved Ext.P4 application for appointment of W.P.(C).No.26980 of 2009 - O 2 a commission to ascertain certain matters and also to prepare a plan showing B schedule. Ext.P4 application was objected to by the defendant. Learned Munsiff after hearing both sides dismissed Ext.P4 application vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. Perusing Ext.P5 order with reference to exhibits produced, I find that the learned Munsiff dismissed Ext.P4 application apparently for the reason that in the suit a report had already been collected. In the nature of the disputes canvassed in the suit the learned Munsiff has expressed a view, a second commission is not required as there is no dispute over the identity of the suit property. Learned counsel for the petitioner has handed over to me a copy of the written statement filed in the suit. Perusal of the written statement shows that the defendant had disputed the identity of the suit property. That being so, no relief can be granted to the plaintiff in the W.P.(C).No.26980 of 2009 - O 3 suit without identifying the suit property. The view expressed by the learned Munsiff that there is no dispute regarding identity of the plaint property is belied by the contentions raised in the written statement. So much so, setting aside Ext.P5 order I direct the court below to consider Ext.P4 application afresh and pass appropriate orders. In case the defendant seeks for ascertainment of any matters, in the event of Ext.P4 application is entertained, that also shall be considered by the court below. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-