IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 OP(C).No. 176 of 2011(O) ------------------------ OS.195/2009 of MUNSIFF COURT, PALA .................... PETITIONER -------------------- A.O.MATHEW, OUSEPH, AGED 79 YEARS, ARATHANAKUNNEL,VALLICHIRA KARA, PO AND VILLAGE, MEENACHIL TALUK. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): ------------------------- 1. JOSE JOSEPH, S/O.JOSEPH, ARATHANAKUNNEL, VALLICHIRA KARA PO AND VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT 686 592. 2. A.J.CYRIAC,S/O.JOSEPH, ARATHANAKUNNEL,VALLICHIRA KARA PO AND VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT 686 592. R1 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 176 of 2011(O) ---------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1.COPY OF PLAINT IN OS. NO.195/2009 ON THE FILES OF THE MUSIFF'S COURT, PALA. EXT.P2. COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT IN OS. NO.195/2009. EXT.P3. COPY OF THE SALE DEED NO.2551/1953 OF MEENACHIL SRO EX.P4. COPY OF THE SALE DEED NO.1115/07 OF MEENACHIL SRO. EXT.P5. COPY OF THE IA. NO1668/2010 IN OS. NO.195/2009 EXT.P6. COPY OF THE COUNTER AFFIDAVIT TO I.A. NO.1668/2010 FILED BY THE 1ST RESPONDENT. EXT.P7. COPY OF THE ORDER IN IA. NO.1668/2010 IN OS NO.195/1995 of the MUNSIFF'S COURT PALA. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK P.BHAVADASAN, J. ------------------------------------- OP(C) No.176 of 2011 ------------------------------------- Dated this the 14th day of March 2011 Judgment The petitioner seeks to have Ext.P7 order quashed and for a direction to the court below to allow Ext.P5 application filed by him for permission to take up a commission for ascertaining the points made mention of by him in the memo filed before the trial court. 2. The petitioner is the plaintiff in a suit for injunction. The details of the plaint are given in the petition, which are not relevant for the present purpose. The first defendant contested the suit. He filed a written statement and contended that the plaint schedule property is in his possession. He disputed the identity of the plaint schedule property and pointed out that the plaintiff has no manner of right over the suit property. According to him, the description in the plaint is not correct and therefore, identification of the property becomes necessary in the OPC 176/11 2 suit. 3. It was the averments in the written statement that necessitated to have the properties properly identified. That haD compelled the petitioner to file IA No.1668/10. It is pointed out that the defendant also wanted a commissioner to be appointed. However, the court below held that since the suit was one for injunction, it is not necessary to identify the properties. 4. The court below seems to have omitted to take note of the allegations and contentions of the parties in the suit. It is clear from the memo filed that the defendants also wanted a commissioner to be appointed. The court below ought not to have dismissed the petition and ought to have given an opportunity to the plaintiff to have a commissioner appointed and get the properties properly identified so that the real issues involved in the suit could be answered. In the result, this petition is allowed. The impugned order is set aside and the court below is directed OPC 176/11 3 to appoint a commissioner who shall inspect the properties and report about the matters contained in the memorandum submitted by the both sides. P.Bhavadasan, Judge sta OPC 176/11 4