High Court Kerala High Court

Subramunian vs Thrissur Corporation on 17 December, 2009

Kerala High Court
Subramunian vs Thrissur Corporation on 17 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 32493 of 2009(O)


1. SUBRAMUNIAN, S/O.APPUKUTTAN,
                      ...  Petitioner
2. SUSHAMA, W/O.SUBRAMUNIAN,

                        Vs



1. THRISSUR CORPORATION,
                       ...       Respondent

2. THOMAS, S/O.DEVASSY,

                For Petitioner  :SRI.M.K.DILEEP KUMAR

                For Respondent  :SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :17/12/2009

 O R D E R
              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