IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 WP(C).No. 28204 of 2009(O) -------------------------- OS.61/2008 of MUNSIFF COURT,ALUVA .................... PETITIONER(S): --------------- SHANMUGHAN, S/O. NARAYANI, AGED 47 YEARS KUDAMANA PARAMBIL POIKKATTUSSERY. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): --------------- 1. ELIAS, S/O. YACOB, PARACKAL HOUSE, POIKKATTUSSERY. 2. YACOB, PARACKAL HOUSE, POIKKATTUSSERY. ADV. SRI.A.VIJAYAKUMAR FOR R1 & 2 SRI.A.N.SANTHOSH FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.28204/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMISSION REPORT AND SKETCH FILED IN I.A.NO.652/2008 IN O.S.NO.61/2008 OF MUNSIFF COURT, ALUVA. EXT.P2: COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS TO THE REPORT IN I.A.NO.652/2008 IN O.S.NO.61/2008 OF MUNSIFF COURT, ALUVA. EXT.P3: COPY OF THE PETITION (I.A.NO.1431/2009) FILED BY THE RESPONDENTS TO REMIT THE REPORT IN I.A.NO.652/2008 IN O.S.NO.61/2008 OF MUNSIFF COURT, ALUVA. EXT.P4: COPY OF I.A.NO.1586/2009 IN O.S.NO.61/2008 OF MUNSIFF COURT, ALUVA. EXT.P5: COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.1586/2009 IN O.S.NO.61/2008 OF MUNSIFF COURT, ALUVA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.28204 OF 2009 (O) ----------------------------------- Dated this the 15th day of December, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.61 of 2008 on the file of the Munsiff Court, Aluva. Suit is one for declaration of right of easement over a pathway and for its demarcation after measurement and for perpetual prohibitory injunction. Suit claim was resisted by the defendants/respondents filing a written statement, in which, they challenged the claim set up by the plaintiff over the pathway even disputing the identity of that way. On the application moved by the plaintiff, an Advocate Commissioner after conducting local inspection and measuring out the property, prepared a report and plan with the assistance of a surveyor. The respondents/defendants filed objection to that report and plan. They also moved an application for appointment of an Advocate Commissioner afresh to ascertain certain matters, which, according to them, were relevant for adjudication of the disputes involved in the WPC.28204/09 2 suit. The plaintiff objected to that application. The learned Munsiff, however, allowed the application for the second commission moved by the defendants vide Ext.P6 order. Propriety and correctness of Ext.P6 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. Procedure followed by the learned Munsiff allowing the second commission application moved by the defendants without examining the merit of the previous commission report already filed before the court in the suit is patently erroneous and unsustainable in law. This Court in Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) has deprecated the practice of appointing a second commission without examining the merit of the previous report and plan already collected in a suit or proceedings. Needless to point out that any application for appointment of a commission afresh from the defendants should arise for consideration only if the court comes to the conclusion that WPC.28204/09 3 the previous report and plan already collected suffers from any infirmity warranting interference by setting it aside or remitting it for fresh consideration. That being so, Ext.P6 order is liable to be set aside. The learned Munsiff is directed to consider the application moved by the defendants after examining the merit of the previous report and plan already collected at the trial and provided the objections canvassed to such report are substantiated by them and the court is satisfied that setting aside or remitting the report is necessary for a proper and fair disposal of the suit. Subject to the above observations, this writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp