IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 37317 of 2008(P) --------------------------------------- (ORDER DATED 01/09/2008 IN IA.NO.5155/2008 IN OS.NO.944/2004 OF III ADDL.MUNSIFF'S COURT,TRIVANDRUM) .................... PETITIONER: ------------------- B. JYOTHIKUMAR, S/O. BHASKARAN NAIR, `KINNARA', CHOOZHAMPALA, MUKKOLA.P.O., THIRUVANANTHAPURAM. BY ADVS. MR.M.R.ANANDAKUTTAN, SMT.M.HEMALATHA, MR.R.S.MADHU. RESPONDENTS: ------------------------ 1. THRIVIKRAMAN NAIR, S/O. VELAYUDHAN NAIR, T.C. 2/2074, NEELAKODIVELI VEEDU, MANJADIKUDI, MADATHUVILAKOM MURI, PATTOM, THIRUVANANTHAPURAM. 2. SUGUNA DEVI, W/O. THRIVIKRAMAN NAIR, T.C. 2/2074, NEELAKODIVELI VEEDU, MANJADIKUDI, MADATHUVILAKOM MURI, PATTOM, THIRUVANANTHAPURAM. BY ADV. MR.K.B.PRADEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37317/2008-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. 944/04. EXT.P.2: COPY OF THE I.A. NO. 5818/04. EXT.P.3: COPY OF THE COMMISSION REPORT. EXT.P.4: COPY OF THE COMMISSION REPORT & PLAN DTD. 24/02/07. EXT.P.5: COPY OF THE I.A. NO. 5154/08. EXT.P.6: COPY OF THE I.A. NO. 5155/08. EXT.P.7: COPY OF THE OBJECTION IN I.A. NO. 5155/08. EXT.P.8: COPY OF THE ORDER DTD. 01/09/2008 IN I.A. NO. 5155/08. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.37317 OF 2008 (P) ----------------------------------- Dated this the 18th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to call for the records leading to Ext.P8 and issue a writ of certiorari or any other appropriate writ, order or direction quashing the same; ii. to direct the learned III Additional Munsiff to reconsider Ext.P6 Commission application and to pass appropriate orders; iii. to issue such other reliefs which the petitioner may ask for during the course of the proceedings and which this Honourable Court may deem fit and necessary in the interest of justice may also be granted. 2. Petitioner is the plaintiff in O.S.No.944/2004 on the file of the III Additional Munsiff's Court, Thiruvananthapuram. Respondents are the defendants in that suit. Suit was one for WPC.37317/08 2 declaration of title, prohibitory injunction and putting up of a boundary. Two items are scheduled in the plaint, 'A' and 'B' schedule with the plaintiff seeking declaration of title over 'A' schedule stating that 'B' schedule belongs to the defendants. 'B' schedule is stated to be situate on the southern side of 'A' schedule and a boundary wall separating them was demolished by the defendants is the cause shown for fixation of boundaries in the suit. Admittedly, an order of interim injunction applied for by the plaintiff was granted by the court restraining the defendants from interfering with the possession and enjoyment over 'A' schedule by the plaintiff, and it continues to be in force. Commissioners appointed by the court, the former ex parte and the latter with notice, conducted local inspection and filed reports before the court. The second commissioner with the assistance of a surveyor has prepared a plan also. When the suit was listed for trial, it is stated, in the course of recording of evidence, the plaintiff moved an application for interim mandatory injunction and also a commission application setting forth a case that an opening provided in the north western wall of 'A' schedule had WPC.37317/08 3 been closed by the defendants violating the order of injunction issued by the curt. The application for interim mandatory injunction, after hearing both sides, was dismissed and the commission application which was objected to by the defendants was also declined. Ext.P8 is the copy of the order passed by the learned Munsiff disallowing the commission application. Impeaching the correctness of that order, the plaintiff has filed the present writ petition. 3. I heard the counsel on both sides. The report of the Commissioner, the earlier one, clearly demonstrated that there was an opening in the north western wall of 'A' schedule which was noticed by the Commissioner as closed with tin sheets and some granite stones. According to the learned counsel for the petitioner, that opening has now been permanently closed with stones by the defendants and that gave rise to the application for interim mandatory injunction and the commission application. Interference with plaint 'A' schedule property by the defendants as indicated violating the order of injunction passed by the court was brought to the notice under WPC.37317/08 4 the application moved by the plaintiff, and in the fitness of things, atleast the commission application should have been allowed, is the submission of the counsel. On the other hand, the learned counsel for the respondents/defendants submitted that the plaintiff's evidence in the case is already over and further, in both the commission reports, no convincing details are furnished as to the Commissioners having noticed any opening in the north western wall of 'A' schedule. The interim mandatory injunction applied for by the plaintiff with the commission application was found meritless by the court below and in that circumstance, no interference with the order dismissing the commission application is called for, submits the counsel. 4. I have considered the submissions of the counsel with reference to Ext.P8 order and the facts and circumstances presented, and the materials produced with the writ petition have also been perused. Perusal of Ext.P8 order shows that the learned Munsiff dismissed the application for appointment of an Advocate Commissioner, not considering the merit of the WPC.37317/08 5 cause stated by the plaintiff, but for the reason that he had already dismissed the application for interim mandatory injunction. Another reason was that in the two reports filed by the Commissioner, the opening on the north western wall of 'A' schedule has not been pointed out. I find that in the first report of the Commissioner, the details given by him prima facie indicate that there was an opening in the north western wall, which was noticed as closed with some stones and a tin sheet. So much so, the learned Munsiff was not justified in making a statement that both the reports contained no material to show that there was an opening in the north western wall of 'A' schedule. I have already pointed out that the commission application was dismissed for the reason that the application for interim mandatory injunction, perhaps, considered along with that application, was found meritless ad dismissed. On the facts and circumstances presented, the appointment of a Commissioner to find out whether the interim order passed by the court had been violated by the defendants by closing the opening in the north western wall of 'A' schedule warranted an enquiry, for which, appointment of WPC.37317/08 6 Commissioner prayed for by the plaintiff should have been considered and appropriate orders passed thereunder. Both the reasons stated by the learned Munsiff for disallowing the application are found unsustainable under law and facts. Ext.P8 order is set aside. The learned Munsiff is directed to pass appropriate orders on the application for appointment of a Commissioner filed by the plaintiff giving suitable directions to the Commissioner, if the application is allowed, to conduct local inspection expeditiously and file report at the earliest as the trial of the case has already commenced. Subject to the above observations, this writ petition is dismissed. Communicate a copy of the judgment to the court below forthwith. S.S.SATHEESACHANDRAN JUDGE prp