IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15613 of 2008(H)
1. NALINAM, W/O. JAGADEESAN NAIR
... Petitioner
2. JAGADEESAN NAIR, S/O. KOCHUNARAYANA
Vs
1. HARIKRISHNAN, S/O. RAMAN NAIR
... Respondent
2. C.R.JANARDANA PILLAI, S/O. RAGHAVAN
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.M.P.MADHAVANKUTTY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :25/06/2008
O R D E R
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.