IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 21698 of 2009(O) -------------------------------------- OS.212/2008 of MUNSIFF MAGISTRATE COURT, ERATTUPETTA .................... PETITIONER(S): --------------------- A.D.THOMAS, AGED 73 YEARS, S/O.LATE DEVASSYA, ARAYATHINAL HOUSE, PATHAMPUZHA KARA, POONJAR THEKKEKARA VILLAGE, KOTTAYAM. BY ADV. MR.JINU JOSEPH RESPONDENT(S): ------------------------ 1. ANNE @ ACHAMMA, W/O.NEPHER @ WALTER, AGED 59 YEARS, 2A 5620, BREMGARTON AIG, WOBLER STREET, SWITZERLAND REPRESENTED BY POWER OF ATTORNEY A.D.SEBASTIAN, S/O.LATE DEVASSYA, ARAYATHINAL HOUSE, PATHAMPUZHA KARA, POONJAR THEKKEKARA VILLAGE, KOTTAYAM. 2. A.D.SEBASTIAN, S/O.LATE DEVASSYA, ARAYATHINAL HOUSE, PATHAMPUZHA KARA, POONJAR THEKKEKARA VILLAGE, KOTTAYAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.21698 of 2009 - O --------------------------------- Dated this the 31st day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs. “i) To issue a writ of certiorari and quash Ext.P9. ii) To declare that the 1st respondent/plaintiff cannot be allowed the relief sought n Ext.P7 petition without having a pleading in the plaint. iii) To declare that the 1st respondent/plaintiff can only be directed to either amend the plaint or file a fresh suit for the relief sought in Ext.P7. iv) To declare that the Ext.P6 power of attorney is not admissible in evidence and that the lower court ought to decide3 on the same before any other proceedings in the suit.” 2. Petitioner is the defendant in O.S.No.212/2008 on the file of the Munsiff Court, Erattupetta. Suit is one for perpetual prohibitory injunction. Plaintiff, who is stated to be in Switzerland, through her power of attorney, one of her brothers instituted the above suit. Defendant is stated to be another W.P.(C).No.21698 of 2009 - O 2 brother of the plaintiff. After appearance, defendant filed written statement disputing the suit claim in which among other contentions he also challenged the description of the schedule property. A commission was taken out on the allegations raised by the plaintiff that the petitioner/defendant is taking hasty steps to cut and remove the trees in the property. Later, the plaintiff moved for appointment of another commission to measure out the property with the assistance of a surveyor. That application was allowed by the court, and the correctness of that order is impeached in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. 5. Learned counsel for the petitioner submitted that the power of attorney produced by the agent of the plaintiff to institute the suit has been challenged and without entering a W.P.(C).No.21698 of 2009 - O 3 finding as to its merit and acceptability, further proceedings in the suit should not have been continued. Ext.P9, appointing a commission without examining the aforesaid challenge and also when a report is already collected in the suit, according to the counsel, is improper and unsustainable. I cannot agree with the submission made by the counsel. So far as the challenge raised against the power of attorney, the agent of the plaintiff, it is to be noted that the suit is instituted only for a decree of injunction. Any person who is in possession and management of the property on behalf of the plaintiff, can maintain such a suit even without producing a power of attorney. If at all any dispute over the power of attorney is raised its authenticity has to be examined after affording the plaintiff who is, admittedly, now in abroad, to show that she has authorized her brother, her agent, to institute the suit. That can be done only in the trial of the suit. As regards the next challenge, the appointment of the commission to identify the property with the assistance of a surveyor was unwarranted, I cannot agree. The defendant in his written statement has disputed the identity of the suit W.P.(C).No.21698 of 2009 - O 4 property contending that it lies contiguous without any boundary with his properties. Suit being one for decree of injunction identification of the suit property is a must, and any decree passed without doing so is likely to have ramification later, in the event of violation of the decree. So, in any view of the matter, the challenge raised against Ext.P9 order cannot be sustained. The writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-