IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 335 of 2006(M) ------------------------ OS.749/2004 of PRL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- BIJU GEORGE, (WRONGLY SHOWN AS BIJI IN THE ORDER) S/O.M..G.GEORGE, AGED 38, C.R.A.14A, PANCHAMI, NALANDA GARDENS, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): --------------- 1. A.M.SALIMKUTTY RAWTHER, TC.25/19, PAZHAVANGADI MURI, PULIMOODU, TRIVANDRUM. 2. S.A.JAMMA, W/O.A.M.SALIMKUTTY RAWTHER, T.C.25/19, PAZHAVANGADI MURI, PULIMOODU, TRIVANDRUM. ADV. SRI.MANJERI SUNDERRAJ FOR R1&2 SRI.S.LALEEDHARAN FOR R1&2 SRI.B.K.RAJAGOPAL FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.335/2006 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.749/2004 ON THE FILE OF THE MUNSIFF COURT, TRIVANDRUM EXT.P2 TRUE COPY OF THE PHOTOGRAPH TAKEN FROM THE PROPERTY OF PETITIONER'S. EXT.P2(A) TRUE COPY OF THE PHOTOGRAPH TAKEN FROM THE SIDE OF RESPONDENTS PROPERTY EXT.P3 TRUE COPYOF THE COMMISSION APPLICATION IN O.S.NO.749/2004 BEFORE THE MUNSIFF COURT, TRIVANDRUM EXT.P4 TRUE COPY OF THE OBJECTION TO EXT.P3 BEFORE THE MUNSIFF COURT, TRIVANDRUM IN O.S.NO.749/2004 EXT.P5 TRUE COPY OF THE REPORT AND ROUGH SKETCH FILED BY THE COMMISSIONER BEFORE THE MUNSIFF COURT, TRIVANDRUM IN O.S.NO.749/2004 EXT.P6 TRUE COPY OF THE COMMISSION APPLICATION IN O.S.NO. 749/2004 BEFORE THE MUNSIFF COURT, TRIVANDRUM EXT.P7 TRUE COPY OF THE ORDER DATED 3-12-2005 ON I.A.NO.10603/2005 IN O.S.NO.749/2004 OF THE PRL. MUNSIFF COURT, TRIVANDRUM EXT.P8 TRUE COPY OF THE APPLICATION FOR AMENDMENT OF PLAINT IN O.S.NO.749/2004 OF THE PRL. MUNSIFF COURT, TRIVANDRUM. /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - W.P.(C) .No. 335 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of October, 2009 JUDGMENT In this writ petition under Article 227 of the Constitution , the second defendant in O.S.No.749/2004 on the file of Munsiff Court, Thiruvananthapuram challenges Ext.P7 order passed by the lower court allowing a petition for issuance of a Commission. 2. The respondent herein filed O.S.No.749/2004 before the Munsiff Court, Thiruvananthapuram for an injunction restraining the defendant from destroying the wall on the northern side of A and B schedule properties and from trespassing into the plaint schedule properties and obstructing plaintiff's peaceful occupation in the building. In the suit, Commission was issued and he inspected the properties and filed a report and a rough sketch, copy of which is produced as Ext.P5 in this writ petition. The plaintiff was examined as PW1 before the trial court. Thereafter, the plaintiff filed a petition to amend the plaint and another petition to issue a fresh commission as WPC.No.335/2006 Page numbers I.A.No.10603/2005 before the trial court. The Munsiff allowed that petition by Ext.P7 order and issued a fresh commission to inspect the properties . The writ petitioner has challenged the said order in this writ petition. 3. The main contention raised by the petitioner is that Ext.P6, copy of the petition for issuance of commission contains the same prayers as already reported by the Commissioner in Ext.P5 report and that in the light of the decision reported in Swami Premananda Bharathi v. Swami Yogananda Bharathi ( 1985 KLT 144) , appointment of a second commission without setting aside the proceedings and report of the first commissioner is illegal. 4. I have gone through the first report of the Commissioner- Ext.P5 and the present petition for issuance of fresh commission - Ext.P6 . The points to be reported by the Commissioner mentioned in Ext.P6 is covered by the previous report of the Commissioner- Ext.P5. Therefore, in my view without setting aside the earlier commissioner's report and plan , the Munsiff should not have issued the second commissioner. That being so, the impugned order dated December 3, WPC.No.335/2006 Page numbers 2005 in I.A.No.10603/2005 in O.S.No.749/2004 is liable to be set aside. In any event, the plaintiff is entitled to adduce evidence in the suit to show that the facts reported by the Commissioner in Ext.P5 are not correct. The writ petition is disposed of as found above. P.Q.BARKATH ALI JUDGE sv. WPC.No.335/2006 Page numbers