IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 WP(C).No. 15613 of 2008(H) -------------------------- OS.196/2003 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER: ------------ 1. NALINAM, W/O. JAGADEESAN NAIR 2. JAGADEESAN NAIR, S/O. KOCHUNARAYANA KURUPPU, BOTH ARE RESIDING AT AYYANATHU HOUSE PERUNNA, CHANGANACHERRY. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- 1. HARIKRISHNAN, S/O. RAMAN NAIR 2. C.R.JANARDANA PILLAI, S/O. RAGHAVAN PILLAI, BOTH ARE RESIDING AT PLAPRATHEKKEMANGALASSERIL PERUNNA ,CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY FOR R1 & 2 SRI.GOKUL DAS V.V.H. FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.15613 of 2008 EXT.P1 TRUE COPY OF THE ORDER IN I.A.NO.457/2008 IN O.S.NO.196/2003 ON THE FILE OF THE COURT OF THE MUNSIFF, CHANGANACHERRY, DATED 10.3.2008. EXT.P2 TRUE COPY OF THE EARLIER REPORT OF THE ADVOCATE COMMISSIONER DATED 17.7.2003. EXT.P3 TRUE COPY OF THE APPLICATION FOR DEPUTING AN ADVOCATE COMMISSIONER DATED 3.3.2008 //true copy// P.A. To judge. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.15613 of 2008 ------------------------------- Dated this the 25th June, 2008. J U D G M E N T Petitioners are the defendants and respondents the plaintiffs in O.S.No.196 of 2003, on the file of Munsiff Court, Changanacherry. In their written statement, petitioners raised a counter claim for damages. Though, earlier a commission was appointed including a survey commission, and Commissioners have submitted reports and plans, petitioners filed I.A.No.457/2008 for appointment of an urgent commission contending that to destroy the evidence, respondents destroyed the fence of the property and thereby caused damages. Under Ext.P1 order, it was dismissed holding that report submitted by the Commissioner is already available. The order is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned senior counsel appearing for the petitioners and learned counsel appearing for the respondents were heard. W.P.(C) No.15613 of 2008 2 3. The learned senior counsel for the petitioners pointed out that the details sought to be verified and reported in Ext.P3 petition are not the matters which were reported by the Commissioners in the earlier reports, and they pertain to the damages committed subsequent to the submission of the previous reports. 4. The learned counsel appearing for the respondents points out that no damages in respect of those items is claimed, and in such circumstances, there is no necessity to issue a commission. It was also argued that a survey commission has already been appointed and report and plan were submitted, and in such circumstances, petitioners are not entitled to get appointed another Commission to verify the boundary, as sought for under point No.5 in Ext.P3 petition. 5. There is force in the submission in respect of point No.5 sought to be reported by the respondents. But point Nos.1 to 4 relate to the alleged damages committed subsequent to the submission of the earlier reports. In such circumstances, learned Munsiff was not justified in dismissing Ext.P3 petition in toto. Instead, a Commission should have been appointed to verify and report points Nos.1 to 4 sought for in Ext.P3. Therefore, to that extent, Ext.P1 order warrants interference. W.P.(C) No.15613 of 2008 3 The writ petition is allowed. I.A.No.457/2008 is allowed in part. Learned Munsiff is directed to appoint the Commissioner who filed the earlier report, if available at present to submit a report verifying the points 1 to 4 sought for in Ext.P3 petition, or to any other Commissioner, if not available. M.SASIDHARAN NAMBIAR, JUDGE nj.