IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 23597 of 2009(O) --------------------------------------- I.A. NO.481/2008 IN OS.NO.148/2006 OF MUNSIFF COURT, QUILANDY. .................... PETITIONER: ------------------- SUNIL KUMAR,S/O.BHASKARAN,POOKKATTIL, CHEMANCHERY VILLAGE,THIRUVANGUR DESOM,KOYILANDY TALUK. BY ADV. MR.R.K.MURALEEDHARAN. RESPONDENTS: ------------------------ 1. BHASKARAN NAIR,S/O.SRAMBI KUNHIRAMAN NAIR, MEETHALE ORANVANGARA,CHEMANCHERY VILLAGE & DESOM,KOYILANDY TALUK, PIN-670 516. 2. CHANDRASEKHARAN NAIR, -DO- -DO- 3. PUSHPAVALLI,W/O.CHANDRASEKARAN NAIR, -DO- -DO- 4. NISHA,D/O.CHANDRASEKARAN NAIR, -DO- -DO- 5. JISHA,D/O.CHANDRASEKARAN NAIR, -DO- -DO- 6. NIJEESH,S/O.CHANDRASEKARAN NAIR, -DO- -DO- R1 TO R3 & R6 BY ADVS. MR.R.PARTHASARATHY, MR.C.JAYACHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23597/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPORT AND THE PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).NO.24573/07 DTD. 11/10/2007. EXT.P.3: COPY OF THE AMENDED PLAINT. EXT.P.4: COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 2 & 3 DTD. 06/03/2008. EXT.P.5: COPY OF THE I.A.481/08. EXT.P.6: CERTIFIED COPY OF THE ORDER IN I.A. 481/08 IN O.S. 148/2006. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.23597 of 2009 - O --------------------------------- Dated this the 16th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ order or direction, quashing Ext.P6 order in I.A.No.481/2008 in O.S.No.148/2006 on the file of the Munsiff Court, Koilandi dated 29.6.2009 or inthe alternative, ii) To set aside Ext.P6 order in I.A.No.481/2008 in O.S.No.148/2006 on the file of the Munsiff Court, Koilandi dated 29.6.2009 and allow the I.A.No.481/2008 as prayed for.” 2. Petitioner is the plaintiff in O.S.No.148 of 2006 on the file of the Munsiff Court, Koilandi. Suit is one for perpetual prohibitory injunction, but, later amended seeking for a decree of mandatory injunction as well. Respondents are the defendants in that suit. Petitioner/plaintiff claimed title and possession over plaint B schedule pathway for his enjoyment of plaint A schedule property. Suit was instituted against the first respondent as the sole defendant. But, later, additional respondents 2 to 6 were impleaded as additional defendants in the suit. First respondent W.P.(C).No.23597 of 2009 - O 2 did not file any written statement. Additional respondents 2 and 3 among the additional respondents brought in filed joint written statement resisting the suit claim, on 6.3.2008. Before impleading the additional defendants 2 to 6 petitioner/plaintiff has applied for withdrawal of the suit for the reason that there were some defects in the plaint. Permission was declined for withdrawal by the trial court. The order thereof had been challenged by way of writ petition before this Court. This Court by Ext.P2 judgment disposed the writ petition permitting the petitioner/plaintiff to move amendment to the plaint seeking incorporation of such matters which are necessary for adjudication of the suit. Pursuant thereto amendment application was moved and additional respondents were impleaded in the suit. Ext.P3 is the copy of the plaint after incorporating the amendments by which relief of decree of mandatory injunction was also sought for. The defendants 2 and 3 in their written statement disputing the suit claim contended that B schedule is not in existence. They also challenged the entitlement of the plaintiffs for the reliefs claimed in the suit. Petitioner/plaintiffs W.P.(C).No.23597 of 2009 - O 3 moved Ext.P5 application for remitting the previous commission report seeking determination of some additional matters by deputing another commissioner. That application was opposed to by the defendants. The learned Munsiff dismissed Ext.P5 application of the plaintiff vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. From the submissions made and the facts and circumstances presented I find the reasons set out in Ext.P6 order for disallowing Ext.P5 application are not proper and correct. Learned Munsiff has stated that Ext.P5 application was filed only when the suit was listed for trial. From the submissions made by the counsel and also perusing exhibits produced with the writ petition, it appears, the additional defendants 2 and 3 filed their written statement only on 6.3.2008 and Ext.p5 application was moved by the petitioner/plaintiff on 15.3.2008. Previously before the impleadment of the additional defendants W.P.(C).No.23597 of 2009 - O 4 and submission of their written statement if the suit had been listed for trial with the first respondent as sole defendant, that in no way can affect the right of the petitioner/plaintiff to move for a commission when the very existence of B schedule pathway is challenged by the additional defendants in their written statement. It is also noticed that the plaintiff was legally entitled to move a commission application after issues were cast on the basis of the contentions raised in the written statement of the additional defendants, irrespective of the fact that a previous commission report had been collected which, admittedly, was only prepared with a rough sketch but not showing the identity of the A schedule or B schedule with precision. Suit being one for injunction identity of the property over which injunction sought for which was disputed by the defendants, is inevitable. Determination of the identity of the property by commission and its measurements with reference to title deed and revenue records to consider whether the relief of injunction sought for in the suit to be granted or not is essential. Setting aside Ext.P6 order I direct the court below to consider Ext.P5 application W.P.(C).No.23597 of 2009 - O 5 afresh and pass appropriate orders. Learned counsel for the respondents has raised serious objections to some of the points sought to be determined in Ext.P5 application which, according to the counsel, is, not relevant for adjudication of the disputes involved in the suit. That is also a matter to be looked into by the court below, and it is for the court to consider on what points a commission is to be allowed for adjudication of the disputes involved to have a fair disposal of the suit in accordance with law. Writ petition disposed of as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-