IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 WP(C).No. 23656 of 2008(N) -------------------------- OS.913/2007 of PRL.MUNSIFF COURT,TRIVANDRUM .................... PETITIONER: ------------ T.EDWARD KOSHY, S/O.T.K.KOSHY, T.C.12/754, VALAMKOTTU HOUSE, LAW COLLEGE JUNCTION, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU RESPONDENTS: ------------- 1. N.R.SURESHKUMAR, S/O.N.R.NARAYANA PILLAI T.C.15/1515(1), KUNNUKUZHY, THIRUVANANTHAPURAM. 2. MRS.N.R.SURESHKUMAR, W/O.N.R.SURESHKUMAR, T.C.15/1515(1), KUNNUKUZHY, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23656 of 2008 ------------------------------- Dated this the 6th August, 2008. J U D G M E N T Petitioner is the plaintiff and respondents the defendants in O.S.No.913 of 2007, on the file of Munsiff Court, Thiruvananthapuram. Petitioner filed I.A.No.3038 of 2008 for appointment of a commission. It was dismissed under Ext.P5 order. This petition is filed under Article 227 of the Constitution of India challenging Ext.P5 order. 2. In view of the order to be passed in this petition, no notice need be send to the respondents. 3. Under Ext.P5 order, learned Munsiff dismissed the application on the ground that identity of the plaint schedule property was not disputed and defendants have undertaken that they have no intention to trespass into the plaint schedule property. 4. The learned counsel appearing for the petitioner was heard. 5. The argument of the learned counsel is that there was no undertaking by the defendants and in Ext.P2 written statement, they have set up an agreement for sale, which was not admitted by W.P.(C) No.23656/2008 2 the petitioner, and though defendants are claiming only 9 cents of the property under a sale deed admitted by the petitioner, that 9 cents is to be separated from the remaining portion of the plaint schedule property, and learned Munsiff should have allowed the application. 6. On hearing the learned counsel, I find force in the submission. In the written statement, there is no admission with regard to the identity of the plaint schedule property. What is stated in Ext.P2 written statement is that in O.S.No.228 of 2004, it was found that petitioner has title to only 12 cents of the property, out of which 9 cents was sold to the respondents, as per the sale deed, and petitioner entered into an agreement for sale in respect of remaining three cents, and O.S.No.412 of 2007 is pending for a specific performance of the said agreement. In such circumstances, it cannot therefore be said that the identification of the remaining property is not necessary. Ext.P5 order is quashed. Learned Munsiff is directed to pass appropriate orders in I.A.No.3038/2008, after hearing the parties, in accordance with law. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.