IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 19534 of 2008(A) -------------------------- AGAINST THE ORDER DATED 25/06/2008 IN IA.690/2008 IN OS.55/2007 of MUNSIFF COURT, PUNALUR .................... PETITIONER(S): -------------------------- KUNJUNNI PILLAI, S/O.PARAMESWARAN PILLAI, MANI BHAVAN VEEDU, VENCHEMBU MURI, KARAVALOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. MR.B.MOHANLAL RESPONDENT(S): --------------------------- 1. PADMAKSHIAMMA, PADMANA BHAVAN, VENCHEMBU MURI, KARAVALOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2. RAMAKRISHNAN NAIR, PADMANA BHAVAN, VENCHEMBU MURI, KARAVALOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. R1 & R2 BY ADVS. MR.ARUN RAJ, MR.C.S.MANILAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19534/2008A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN OS.NO.55/2007 DTD. 19/02/2007 OF MUNSIFF COURT, PUNALUR. P2: COPY OF THE WRITTEN STATEMENT DTD. 17/09/2007 FILED BY THE PETITIONER. P3: COPY OF THE COMMISSION REPORT DTD. 20/02/2007. P4: COPY OF THE SECOND COMMISSION REPORT DTD. 19/03/2008. P5: COPY OF THE APPLICATION IN I.A.NO.690/2008 DTD. 25/03/2008 FILED BY THE RESPONDENTS. P6: COPY OF THE OBJECTION FILED BY THE PETITIONER. P7: COPY OF THE ORDER NO.L4-17494/2007 DTD. 8/10/2007 OF THE DISTRICT COLLECTOR, KOLLAM. P8: COPY OF THE ORDER IN I.A.NO.690/2008 DTD. 25/06/2008 OF THE MUNSIFF COURT, PUNALUR. P9: COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER TO THE COUNSEL. P10: COPY OF THE I.A.NO.1208/2008 DTD. 28/06/2008. RESPONDENT'S EXHIBITS: R1(A): PHOTOGRAPH. R1(B): PHOTOGRAPH. R1(C): PHOTOGRAPH. R1(D): PHOTOGRAPH. /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.19534 OF 2008 (A) ----------------------------------- Dated this the 10th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to call for the records leading to Ext.P5 application in I.A.No.690/2008 from the Munsiff Court, Punalur and set aside the order dated 25.6.2008 in I.A.No.690/2008 in O.S.No.55/2007. ii. to direct the Munsiff Court, Punalur to issue certified copy of the order in I.A.No.690/2008 in O.S.No.55/2007 dated 25.6.2008 to the petitioner within a stipulated time as directed by this Honourable Court and till then the operation and implementation of the above order may be kept in abeyance. iii. To issue such other reliefs as this Honourable Court may deem fit and proper in the circumstances of the case. 2. Petitioner is the defendant in O.S.No.55/2007 on the file of the Munsiff's court, Punalur. Suit was one for perpetual WPC.19534/08 2 prohibitory injunction and respondents are the plaintiffs in the above suit. In the suit, four items of properties are scheduled. 'A' schedule is stated to be belonging to the 1st plaintiff, and the other items to the 2nd plaintiff. Along with the suit, the plaintiffs moved an application for interim injunction till the disposal of the suit to restrain the defendant from interfering with his possession and enjoyment over the suit properties and also from obstructing the pathway leading to that property. That application for injunction, it is conceded, was dismissed. Immediately on filing of the suit, an Advocate Commissioner conducted a local inspection and filed a report and plan on the application moved by the plaintiffs. Ext.P3 is the report and sketch which was admittedly prepared without giving notice to the defendant. During the pendency of the suit, the plaintiffs moved an application for appointment of a fresh Commission setting forth a case that the pathway leading to the property was obstructed by the defendant and the nature of the obstructions has to be assessed by the Commissioner; and, that application being allowed the Commissioner who prepared Ext.P3 report and plan again visited the property and filed Ext.P4 report and sketch. Plaintiffs thereupon WPC.19534/08 3 moved an application under Section 151 of the CPC advancing a case that the pathway to his property had been obstructed by the defendant and it is borne out by the two reports prepared by the Commissioner and removal of that obstruction is immediately required for ingress and egress to his residential building. Ext.P5 is the copy of that application. The defendant filed objections to that application and Ext.P6 is the copy of that objection, in which, he disputed the case set up by the plaintiffs in his application. The learned Magistrate, after hearing the counsel on both sides and appreciating the materials produced, came to the conclusion that the obstruction over the pathway alleged by the plaintiffs has been proved and it is liable to be removed. Ext.P8 order was passed directing the Commissioner who submitted two reports and sketches, to visit the plaint schedule property again and remove the obstructions caused in the pathway with reference to his first report. Probably, the court was indicating that the statusquo as borne out by the first report has to be restored by the Commissioner though it is not explicitly stated in Ext.P8 order. The Commissioner, after removing the obstructions, was directed to file a report. The execution of the order was WPC.19534/08 4 directed to be performed with notice to both sides. Legality, propriety and correctness of Ext.P8 order is impeached by the defendant filing this writ petition invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Though the learned counsel appearing for the respondents/plaintiffs in the suit strenuously contended that Ext.P8 order does not suffer from any serious infirmity warranting interference by this Court in exercise of its supervisory jurisdiction after examining the materials produced and the submissions made by both sides, I find that Ext.P8 order is patently erroneous and unsustainable under law. If at all, there was any obstruction over the pathway which lead to the residential building of the plaintiffs, in case it is a subject matter involved in the list calling for the adjudication of the court, necessarily and inevitably on the case pleaded by the plaintiffs, a definite finding ought to have been entered by the court whether the obstruction was caused by the defendant, and if so found, the first order or direction should have been given to the WPC.19534/08 5 defendant to remove that obstruction. Commissioner is an officer of the Court deputed by the Court to collect materials to enable it to decide the issues arising for adjudication in a suit or proceedings. The order of the learned Munsiff directing the Commissioner to go and remove the obstructions without entering a finding whether the defendant had caused any obstruction as alleged by the plaintiff is perse wrong and illegal. The court cannot enter into a conclusion if at all any such obstruction had been caused, that it was done by the defendant. That question has to be decided after collecting evidence. Solely on the basis of the two commission reports of which one is seen collected behind the back of the defendant, the learned Munsiff has directed the Commissioner to restore the statusquo. Ext.P8 order, on any count, cannot be sustained and it is liable to be set aside, I do so. The learned counsel for the respondents submitted that in view of the obstructions caused over the pathway he is prevented from having any access to his residential building, and so much so, appropriate directions or orders be issued for an expeditious disposal of the interlocutory application moved by him for removing the obstructions in that pathway. Having regard to WPC.19534/08 6 the nature of the disputes involved and the reliefs sought for, I find what is required is an expeditious disposal of the suit itself. The learned Munsiff is directed to give the suit top priority in hearing and to dispose it as expeditiously as possible after affording reasonable opportunity to both sides to establish their respective cases, at any rate, within a period of six months from the date of receipt of a copy of this judgment. Writ petition is disposed of. I make it clear that the observations made by this Court should not be taken for consideration for any purpose while disposing the suit on merits. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009