IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 OP(C).No. 391 of 2010(O) ------------------------ OS.364/2008 of MUNSIFF COURT, THALASSERY .................... PETITIONER : -------------------- V.K.JIJUMON, AGED 26 YEARS, S/O.KARUNAKARAN, RESIDING AT THARACHANDY HOUSE, KIZHUNNA PO, KANNUR 670 007. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU SMT.C.S.RAJANI RESPONDENT(S): -------------------------- 1. CHERUKUNNUMMAL VINODINI,W/O.KUMARAN, UNNANKANDY HOUSE, NEAR VAGBHATANANDA,VAYANASHALA, CHIRAKKUTHAZHE, KIZHUNNA PO, KANNUR 670 007. 2. THE SECRETARY, EDAKKAD GRAMA PANCHAYAT, P.O. EDAKKAD, KANNUR 670 001. ADV. SRI.M.A.KHADIRKUNJU FOR R-1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- O.P.(C).No.391 of 2010 ------------------------------------- Dated this the 11th day of March, 2011 JUDGMENT The petitioner is the first plaintiff in O.S.No.364 of 2008 on the file of the court of the Munsiff of Thalassery. On the application of the plaintiffs, a Commissioner was appointed who inspected the property and filed a report. No plan or sketch was produced. 2. The suit is for injunction restraining the first defendant from trespassing upon the plaint schedule properties and making a pathway or road through the plaint schedule properties or committing any act of waste. The contention of the first defendant is that there is a pathway in between the plaintiffs' property and the defendant's property and that it is a public property. It is also contended by the defendant that the pathway in question is OPC 391/2010 2 the only pathway leading to the defendant's property. 3. The plaintiffs filed I.A.No.1467 of 2010 to remit the Commissioner's report. In the affidavit accompanying the application, it was stated that the Commissioner has not properly specified the plaint schedule property and he did not measure the plaint A and B schedule properties with reference to the title deeds. It was stated that without measuring the property in accordance with the title deeds, it is not possible to properly identify the property. It was also pointed out that the Commissioner omitted to note that there is access to the defendant's property through the remaining portion of her property. That the measurements of the alleged pathway were not taken note of by the Commissioner is another objection raised by the plaintiffs. 4. The court below dismissed the application by the order dated 27.7.2010. The court below held that there is OPC 391/2010 3 inordinate delay in making the application. It is also stated by the court below that the matters which are to be ascertained by the Commissioner were not stated in the application for remitting the Commissioner's report. 5. That there is delay is not in dispute. The question is whether the delay can be compensated in terms of costs. I am of the view that it could be done. The grounds stated by the court below that the plaintiffs did not mention in the application the matters which are necessary to be ascertained by the Commissioner does not appear to be fully correct. On a reading of the affidavit in support of the petition, it is fairly clear as to what the Commissioner is expected to do after remitting the report. In these circumstances, I am of the view that an opportunity should be given to the plaintiffs to get a report as requested in the application for remittal. 6. Accordingly, the order dated 27th July, 2010 in OPC 391/2010 4 I.A.No.1467 of 2010 is set aside and the application is allowed on condition that the plaintiffs shall pay a costs of ` 1,000/- to the first defendant within a period of one month from today. If the plaintiffs pay the costs, the Commissioner shall be directed to inspect the property with the assistance of the Village Officer. The Commissioner shall inspect the property with reference to survey and also with reference to the title deeds. Both parties will be entitled to file work memo before the Commissioner. If the plaintiffs fail to pay the costs, the order passed by the court below will remain in force and the Original Petition shall be treated as dismissed. The Original Petition is allowed as above. K.T.SANKARAN JUDGE csl