IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WP(C).No. 23089 of 2009(O) --------------------------------------- PETITIONERS: --------------------- 1. CHINNAMMA, W/O.ANTONY, KOLLASSERIL HOUSE, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK. 2. JOHNY, S/O.ANTONY, DO. DO. BY ADVS. MR.MATHEW JOHN (K), MR.AJEESH K.SASI. RESPONDENTS: ------------------------ 1. ANTONY, S/O.KURIAN, KOLLASSERIL HOUSE, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK. 2. ROY, S/O.DEVASSIA, PLAKKUZHIYIL HOUSE, ARAKKULAM VILLAGE. R1 BY ADV. MR.P.CHANDY JOSEPH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23089/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT DTD. 25/02/2008 IN O.S. NO. 72/2008. EXT.P.2: COPY OF THE WRITTEN STATEMENT DTD. 23/06/2008 BY THE RESPONDENT. EXT.P.3: COPY OF THE AFFIDAVIT AND PETITION BY THE PETITIONERS DTD. 03/07/2009. EXT.P.4: COPY OF THE ORDER DTD. 14/07/2009 IN I.A. NO. 800/2009 IN O.S. NO. 72/2008 OF MUNSIFF'S COURT, THODUPUZHA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.23089 OF 2009 -------------------------- Dated this the 13th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading up to Ext.P4 and set aside the same. ii) Issue appropriate directions requiring the court below to allow the prayer of the petitioners made in Ext.P3. iii) Issue such other directions or orders as are just and necessary in the facts and circumstances of the case to meet the ends of justice. 2. Petitioners are the plaintiffs in O.S No.72 of 2008 on the file of Munsiff court, Thodupuzha. Suit is one for permanent prohibitory injunction, and the respondents are the defendants. W.P.(C).No.23089 OF 2009 Page numbers Resisting the suit claim, the defendants filed a written statement in which among other contentions, the plaint allegations relating to the description of the property was also disputed. Whereas the plaintiffs in the plaint alleged that the plaint schedule property and that of the first defendant, remain without any boundaries, the defendant in his written statement contended, the property belonging to him and under his possession is demarcated by well built boundaries. Plaintiffs, presumably, in the light of the contentions raised by the defendants moved an application for appointment of a commission for determination of certain points by local inspection and measurement of the plaint property with the assistance of a surveyor. Ext.P3 is the copy of that application. The court below after hearing both sides dismissed that application vide Ext.P4 order. Propriety and correctness of Ext.P4 order is challenged in the writ petition W.P.(C).No.23089 OF 2009 Page numbers invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Perusing Ext.P4 order, it is seen, the learned Munsiff has dismissed the application holding that in a suit for injunction survey commission is not necessary. Taking note of the averments in the plaint that fixation of the boundary is necessary after measurement of the property by way of commission, the court below dismissed the application for the reason that the suit has not been filed for fixation of boundary. The reasons adverted to in Ext.P4 order for dismissing the application for commission are not proper and correct. In a suit for injunction also, where the description of the suit property is challenged by the defendants setting forth a contention that the W.P.(C).No.23089 OF 2009 Page numbers allegations raised in the plaint with respect to the plaint property and the claim thereunder are not correct, it is necessary to determine and identify the property. Identification of the suit property is essential to grant a decree of injunction. Without such identification, if any decree of injunction is passed, it will give rise to further complications if at all the decree is violated. Ext.P4 order is liable to be set aside, I do so. Learned Munsiff is directed to pass orders afresh on Ext.P3 application taking note of the observations made above and in accordance with law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv