IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 WP(C).No. 28103 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 2041 /2010 IN OS.358/1999 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------- DEPARTMENT OF POSTS, REPRESENTED BY SENIOR SUPERINTENDENT OF POST OFFICES, ALUVA POSTAL DIVISION, ALUVA. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT(S): --------------- 1. THE KOTHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KOTHAMANGALAM 686691. 2. KOTHAMANGALAM MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRMAN, KOTHAMANGALAM-686691. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.28103/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE SUIT OS NO.358/1999 ON THE FILE OF MUNSIFF'S COURT, MUVATTUPUZHA EXT.P2 TRUE COPY OF THE ADVOCATE COMMISSION REPORT DATED 28.4.1999 EXT.P3 TRUE COPY OF THE ORDER DATED 24.5.2010 IN WP(C) NO.12723/2006 OF THIS COURT EXT.P4 TRUE COPY OF IA NO.2041/2010 IN OS 358/1999 OF MUNSIFF COURT,MUVATTUPUZHA. EXT.P5 TRUE COPY OF ORDER IN IA 2041/2010 IN OS 358/1999 OF MUNSIFF COURT,MUVATTUPUZHA. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.28103 of 2010 -------------------------------------- Dated this the 22nd day of September, 2010. JUDGMENT Plaintiff in O.S.No.358 of 1999 of the court of learned Munsiff, Muvattupuzha is the petitioner in this proceeding challenging Ext.P5, order dismissing Ext.P4, application for appointment of Advocate Commissioner. Petitioner sued the respondents for a decree for prohibitory injunction claiming right of easement over the disputed way. Learned Munsiff passed an order of status quo in the year 1999. Advocate Commissioner earlier appointed has inspected the property and submitted a report. Later the suit was dismissed for default and this Court as per judgment in W.P.(C) No.12723 of 2006 has ordered restoration of the suit. It is thereafter that petitioner has filed Ext.P4, application for issue of commission. The reason is that the Advocate Commissioner while submitting report has mistakenly stated plaint A schedule property as plaint B schedule and vice versa. Since that Advocate Commissioner is not available she could not be examined to correct the mistake. Hence Ext.P4, application. Learned Munsiff has dismissed that application. It is contended by learned counsel for petitioner that what is required is to correctly identify plaint A and B schedule properties and to correct the mistake that occurred in the report submitted by the earlier Commissioner. I have heard learned counsel for respondents as well. According to the learned counsel it is not necessary to WP(C) No.28103/2010 2 depute another Advocate Commissioner for any purpose whatsoever. In response it is contended by learned counsel for petitioner that respondents are exparte in the trial court. 2. The only request now made is that the Advocate Commissioner may be appointed to identify plaint A and B schedule properties to clarify the mistake that committed in the report submitted earlier. That has become necessary since the earlier commissioner is not available to give evidence and correct the mistake. Having regard to the facts and circumstances I find no reason why request of petitioner shall not be allowed. Hence I am inclined to allow the application. 3. So far as the exparte order against respondents is concerned, it is open to them to make appropriate request in the court below to set aside the exparte order if circumstances warranted that. Resultantly this Writ Petition is allowed in the following lines: i. Ext.P5, order dismissing Ext.P4, application is set aside. ii. Ext.P4, application is allowed in the following lines: WP(C) No.28103/2010 3 (a) Learned Munsiff shall appoint an Advocate Commissioner to identify plaint A and B schedule properties, its boundaries, lie and position and report whether identification made by earlier Advocate Commissioner in the report is correct. (b) Batta payable to the Advocate Commissioner shall be fixed by the learned Munsiff after hearing counsel on both sides. THOMAS P.JOSEPH, Judge. cks