IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 WP(C).No. 32573 of 2009(O) -------------------------- OS.1589/2007 of PRL.MUNSIFF COURT, IRINJALAKUDA .................... PETITIONERS: --------------- 1. THANKAM, AGED 44 YEARS, W/O.KAKKARA JANARDHANAN, KANDESWARAM DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REP. BY HER POWER OF ATTORNEY HOLDER MR.RAJESH, AGED 37, S/O.GANGADHARAN, KIZHAKUDAN HOUSE, NELLAYI VILLAGE, MUKUNDAPURAM TALUK. 2. JANARDHANAN, S/O.KAKKARA KUMARAN NAIR, KANDESWARAM DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REP. BY HER POWER OF ATTORNEY HOLDER MR.RAJESH, AGED 37, S/O.GANGADHARAN, KIZHAKUDAN HOUSE, NELLAYI VILLAGE, MUKUNDAPURAM TALUK. BY ADV.MR.G.SREEKUMAR (CHELUR) MR.K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. ASHA MICHAEL, W/O.MELEDATH MICHAEL, THRIKKUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. MICHAEL, H/O.ASHA MICHAEL, MELEDATH, THRIKKUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ADV. MR.RENJITH THAMPAN FOR R1-2 MS.P.A.ANITHA FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32573 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: POWER OF ATTORNEY EXECUTED BY THE 1ST PETITIONER DT. 7.1.2008. EXT.P2: POWER OF ATTORNEY EXECUTED BY THE 2ND PETITIONER DTD. 15.9.2007. EXT.P3: PLAINT IN O.S.NO.1589/2007 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA DTD. 30.10.2007. EXT.P4: COMMISSIONER'S REPORT IN EXT.P3 SUIT DTD. 31.10.2007. EXT.P5: OBJECTIONS FILED BY THE PETITIONERS TO EXT.P4 REPORT DTD. 9.11.2009. EXT.P6: WRITTEN STATEMENT FILED BY THE PETITIONERS HEREIN TO EXT.P3 SUIT DTD. 5.11.2009. EXT.P7: APPLICATION, I.A.NO.3514/2009IN EXT.P3 SUIT DTD. 5.11.2009. EXT.P8: ORDER PASSED BY THE LEARNED MUNSIFF IRINJALAKUDA IN I.A.NO.3514/2009 IN O.S.NO.1589/2007 DTD. 7.11.2009. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.32573 of 2009 - O --------------------------------- Dated this the 8th day of January, 2010 J U D G M E N T Writ petition is filed seeking the following relief: “To call for the records leading to Ext.P8 and may be pleased to set aside the same and Ext.P7 may be allowed in the interest of justice.” 2. Petitioners are the defendants in O.S.No.1589 of 2007 on the file of the Principal Munsiff Court, Irinjalakkuda. Suit is one for declaration of right and injunction and the respondents are the plaintiffs. Respondents/plaintiffs claimed a right of easement of necessity over a pathway described as B schedule in the plaint. A schedule is described as the property of the plaintiffs. Admittedly, the defendants did not file the written statement in time. At a belated stage the defendants filed a written statement and also moved an application for appointment of a commission. Written statement was accepted by the court, but, the application for appointment of a commission was declined vide Ext.P8 order. Propriety and correctness of Ext.P8 order is challenged in the writ petition invoking the supervisory W.P.(C).No.32573 of 2009 - O 2 jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Notice given, respondents have entered appearance. I heard the counsel on both sides. 4. Petitioners/defendants in their written statement among other contentions have disputed the right of easement of necessity claimed through B schedule property contending that the plaintiffs have access to an alternate path way. Mainly to establish that contention petitioners/defendants have sought for appointment of a commission. Learned Munsiff dismissed the application for commission by the defendants for the reason a previous commission report had been collected in the case at the instance of the plaintiffs. According to the learned Munsiff all relevant matters required for adjudication have been ascertained and reported by the commissioner in the previous report. Ext.P4 is the copy of that report and plan prepared by the commissioner deputed by the court on the previous occasion. Noticing that Ext.P4 contain only a rough plan and to get a declaration of easement of necessity identification of the pathway with precision W.P.(C).No.32573 of 2009 - O 3 has to be pleaded and established by the plaintiffs, I find the opposition raised by the plaintiffs against the application of commission of the defendant is meaningless. However the learned counsel for plaintiffs submitted before me that the plaintiffs are satisfied with the earlier report. 5. It is seen that the written statement of the defendants was received by the court only on 5.11.2009. On the basis of the pleadings once the written statement is accepted the court is bound to cast issues. The defendants have raised a definite case that the plaintiffs have an alternate way and so much so, they are not entitled to the right of easement of necessity claimed over a pathway through their property. In order to establish the defence canvassed by the defendants they have to be given a chance to take out a commission. A previous report had been collected by the commissioner after local inspection on the basis of noticing the features presented at the site and a rough plan too prepared is grossly insufficient to determine the issues arising for adjudication in the suit for its fair and proper disposal. The learned Munsiff went wrong in holding that the previous report W.P.(C).No.32573 of 2009 - O 4 would suffice to resolve all questions emerging for determination in the suit. Setting aside Ext.P8 order, the court below is directed to consider Ext.P7 application moved by the defendants afresh and dispose the same in accordance with law taking note of the observations made above. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-