IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 32493 of 2009(O) -------------------------- I.A.NO.9397/2008 IN OS.3216/2006 of II ADDL.M.C.,THRISSUR .................... PETITIONER(S): --------------- 1. SUBRAMUNIAN, S/O.APPUKUTTAN, `ANANDAPURI', OLARIKARA, ARANATTUKARA VILLAGE, THRISSUR DT. 2. SUSHAMA, W/O.SUBRAMUNIAN, DO. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): --------------- 1. THRISSUR CORPORATION, REPD. BY ITS SECRETARY, THRISSUR (PO), THRISSUR DT. 2. THOMAS, S/O.DEVASSY, PORATHUR HOUSE, OLARIKARA, ARANATTUKARA VILLAGE, PULLAZHY (PO), THRISSUR. ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.32493 OF 2009 (O) ----------------------------------- Dated this the 17th day of December, 2009 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to issue a writ of certiorari or such other writ or order quashing Ext.P5 order of the Second Additional Munsiff's Court, Thrissur. 2. Petitioners are the plaintiffs in O.S.No.3216 of 2006 on the file of the Munsiff Court, Thrissur. Suit is for perpetual prohibitory injunction and the respondents are the defendants. The dispute involved in the suit relate to a pathway which is described as 'B' schedule, in respect of which, the plaintiffs have sought for a prohibitory injunction restraining the defendants from reducing its width without the WPC.32493/09 2 consent of the plaintiffs. Suit claim of injunction is resisted by the defendants. The 1st defendant is a local authority, which has contended that it is an unnecessary party. Ext.P1 is the copy of the plaint and Ext.P2 is the copy of the written statement by the 2nd defendant who disputing the claim of the plaintiff over B schedule had also challenged the identity and description of B schedule pathway. With the suit, the plaintiff had moved an application for appointment of a commission and that being allowed, a commissioner had previously filed a report after conducting local inspection. After issues were cast in the suit on the basis of the pleadings, the plaintiff applied again for taking out a commission to measure out the property and prepare a report and plan with the assistance of a surveyor. The learned Munsiff, after hearing both sides, dismissed that application vide Ext.P5 order holding that the previous report contained necessary particulars with respect to the B schedule property in respect of which disputes are raised in the suit. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the WPC.32493/09 3 Constitution of India. 3. Notice given, the 1st respondent has entered appearance. Though notice was served on the 2nd respondent, he has not appeared. I heard the learned counsel for the petitioner and also the learned counsel for the 1st respondent. From the submissions made and taking note of the facts and circumstances presented, I find Ext.P5 order passed by the learned Munsiff declining the request made by the plaintiff to identify B schedule property, which had been disputed by the 2nd defendant, by deputing an Advocate Commissioner to measure out that property and prepare a report and plan with the assistance of a surveyor, is incorrect. The counsel for the petitioners had handed over to me copy of the previous report filed by the Advocate Commissioner in the suit. Though some particulars as to the width and length of the pathway are given in the previous report to grant a decree of perpetual prohibitory injunction as sought for, needless to point out, plaintiff has to establish the identity of the B schedule property with precision, and so much so, that report is hardly WPC.32493/09 4 sufficient for such identification. Ext.P5 is set aside directing the learned Munsiff to consider Ext.P3 application afresh and dispose it in accordance with law. Writ petition is closed with the above directions. S.S.SATHEESACHANDRAN JUDGE prp