IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 WP(C).No. 3092 of 2010(O) ------------------------- OS.66/2007 of MUNI-MAGI.COURT, PERAMBARA .................... PETITIONER(S): ------------------------- V.CHEKKOOTTY,AGED 67 YEARS, S/O.KANARAN,THURAYOR AMSOM AND DESOM,KOYILANDI TALUK AND KOZHIKODE DISTRICT. BY ADV. SRI.SHYAM PADMAN SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU SMT.M.LISHA RESPONDENT(S): PLAINTIFF & 2ND DEFENDANT ---------------------------------------- 1. KALAYATTU KUNIYIL IBRAHIM,AGED 46 YEARS, S/O.SOOPPI,BUSINESS,RESIDING AT VADAKKEKARA, MENJANYAM AMSOM AND DESOM,KOYILANDI TALUK AND KOZHIKODE DISTRICT. 2. PERAMBRA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY,PERAMBRA GRAMA PANCHAYATH, MENJANYAM AMSOM AND DESOM,KOYILANDI TALUK, KOZHIKODE DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.3092 of 2010 = = = = = = = = = = = = = = Dated this the 30 th day of January, 2010 JUDGMENT The 1st defendant in O.S.No.66 of 2007 on the file of the Munsiff's Court, Perambra is the writ petitioner. The said suit instituted by the 1st respondent herein is for a prohibitory injunction against trespass into the said property and effecting construction therein by the writ petitioner and also against the 2nd defendant Panchayat from issuing any plan or licence to the writ petitioner for effecting construction in the property in dispute. The plaint proceeded that there is an existing construction in all the properties jointly by the plaintiff and the petitioner herein. Thereafter the parties fell out and the relief sought for is against effecting additional construction as an annexe to the existing construction. A Commission was taken out at the instance of the plaintiff and the Commissioner wanted the assistance of a qualified Engineer which was provided and subsequently the Commissioner filed Ext.P7 report along with the report and plan prepared by the qualified Engineer. The W.P.(c)No.3092 of 2010 2 petitioner filed I.A.No.307 of 2009 (Ext.P8) for setting aside Ext.P7 report. The said application was opposed by the 1st respondent/plaintiff as per Ext.P9 counter. The said application was being adjourned. In the meanwhile, the writ petitioner/1st defendant filed Ext.P10 application (I.A.No.554/2009) seeking permission to cross-examine the Advocate Commissioner. On 22.12.2009 the court below passed Ext.P11 order dismissing I.A.No.307 of 2009 holding that the counsel for the petitioner did not come forward to argue the petition but instead his junior asked for further adjournment. It is the said order which is assailed in this writ petition. 2. Whatever may be the reason behind the counsel for the petitioner not coming forward to argue Ext.P8 application, the fact remains that Ext.P8 application has not been disposed of on merits. Hence, Ext.P11 order dated 22.12.2009 will not preclude the writ petitioner/1st defendant from filing a fresh application for setting aside Ext.P7 report submitted by the Commissioner. In case the petitioner files a fresh application for setting aside Ext.P7 report on or before 9.2.2010, the same shall be considered and disposed of on merits. It is needless to mention W.P.(c)No.3092 of 2010 3 that in the event of the court below taking up the petition for setting aside the report, the court below will be free to adjourn the trial for the minimum possible period. I, however, wish to emphasis the fact that unless the details of the existing construction are brought on record, it may not be possible for the court to say whether there is any threatened or accomplished construction of additional structures to the existing building. This writ petition is disposed of as above. Dated this the 30th day of January, 2010. V. RAMKUMAR, JUDGE sj