IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 9735 of 2010(O) ------------------------- OS.14/2005 of PRL.M.C.-I, KOZHIKODE .................... PETITIONERS: --------------- 1. NARAYANI.V., W/O.VALLIYAM KOLLIL APPU, AGED 89 YEARS, VALLIYAM KOLLIL HOUSE, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 2. SOUMINI, D/O.VALLIYAM KOLLIL APPU, AGED 70 YEARS, VALLIYAM KOLLIL HOUSE, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 3. SREENIVASAN, S/O.VALLIYAM KOLLIL APPU, AGED 68 YEARS, VALLIYAM KOLLIL HOUSE, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 4. SREEDHARAN, S/O.VALLIYAM KOLLIL APPU, AGED 57 YEARS, VALLIYAM KOLLIL HOUSE, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENTS: --------------- 1. RAJAN, S/O.KANARAKUTTY, AGED 45 YEARS, PAYOLI HOUSE, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 2. BIJU, S/O.KANARAKUTTY, AGED 41 YEARS, PAYOLI HOUSE, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 3. PAYOLI CHANDUKUTTY, S/O.CHOYI, AGED 75 YEARS, PAYOLI HOUSE, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 4. BHARATHAN, S/O.CHANDU, AGED 63 YEARS, PAYOLI HOUSE, ELATHUR AMSOM, WP(C).No. 9735 of 2010(O) PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 5. JALAJA, W/O.RAJAN, AGED 46 YEARS, ELATHUR AMSOM, PERUNTHIRUTHY DESOM, KOZHIKODE TALUK. 6. SHAKUNTHALA, W/O.VASU, AGED 60 YEARS, NO.25/4, CHAYANILAYA DATTA BOMMA, SANDRA VIDHARAYA PURA, BANGALORE-560 097. 7. SHARMILA, D/O.VASU, AGED 42 YEARS, NO.25/4, CHAYANILAYA DATTA BOMMA, SANDRA VIDHARAYA PURA, BANGALORE-560 097. 8. SANILA, D/O.VASU, AGED 38 YEARS, NO.25/4, CHAYANILAYA DATTA BOMMA, SANDRA VIDHARAYA PURA, BANGALORE-560 097. 9. SHIJI, D/O.VASU, AGED 35 YEARS, NO.25/4, CHAYANILAYA DATTA BOMMA, SANDRA VIDHARAYA PURA, BANGALORE-560 097. 10. BIJI, D/O.VASU, AGED 33 YEARS, NO.25/4, CHAYANILAYA DATTA BOMMA, SANDRA VIDHARAYA PURA, BANGALORE-560 097. ADV. SRI.NIRMAL. S FOR R1 TO 3,5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9735 of 2010(O) APPENDIX PETITIONERS' EXHIBITS:- EXHIBIT P1:- Plaint in O.S.No.14/2005 in the Court of the Munsiff, Kozhikode -I, dtd.31/12/2004. EXHIBIT P2:- Application for issuing commission in O.S.No.14/2005 in the Court of the Munsiff, Kozhikode-I, dtd.17/2/2010. EXHIBIT P3:- Order in I.A.No.975/2010 in O.S.No.14/2005 in the Court of the Munsiff, Kozhikode-I, dtd.25/2/2010. RESPONDENTS' EXHIBITS:- Nil True copy P.A. to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.9735 of 2010 --------------------------------------- Dated this 26th day of May, 2010 JUDGMENT Petitioners/plaintiffs are aggrieved by dismissal of I.A.No.975 of 2010, application for an issue of commission preferred by them in O.S.No.14 of 2005 of the court of learned Principal Munsiff-I, Kozhikode. That is a suit for mandatory injunction to direct respondents to demolish the room which according to the petitioners was constructed by the latter trespassing into item No.3 of plaint schedule owned and possessed by the petitioners and for decree for prohibitory injunction. Petitioners wanted an Advocate Commissioner to inspect the property and report on the matters requested for therein but, that application was dismissed as per order dated 25-02-2010 for the reason that appellate court has directed time bound disposal of the suit and that the application is belated. from the date of appearance of the parties and that application is belated. Learned counsel for petitioners submit that report and plan as requested for in I.A.No.975 of 2010 is essential for deciding the controversy between parties. Learned counsel for respondents submit that the suit was dismissed for default and, it was restored as judgment dated 12-11-2009 in C.M.A.No.77 of W.P.C.No.9735 of 2010 : 2 : 2007 and while allowing that C.M.appeal learned District Judge had directed a time bound disposal of the suit. The application for the issue of commission was highly belated. 2. The impugned order states that appellate court has given specific direction to dispose of the suit within six months . That by itself is not a ground to disallow the issue of commission if it is found necessary. In case learned Munsiff could not comply with the direction for time bound disposal, then, learned Munsiff could have requested the learned District Judge to grant further time for disposal of the case. In the circumstances, learned Munsiff was not correct in dismissing the application for reasons stated in the order. In the circumstance, the writ petition is allowed and the impugned order is set aside. I.A.No.975 of 2010 is remitted to the court below for fresh consideration and to pass appropriate orders taking into account the necessity to get report and plan as requested for in the application to decide the controversy involved in the case. (THOMAS P JOSEPH, JUDGE) Sbna/-