High Court Kerala High Court

N.Mohankumar vs Santhakumari Kunjamma And … on 17 July, 2009

Kerala High Court
N.Mohankumar vs Santhakumari Kunjamma And … on 17 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 36032 of 2008(M)


1. N.MOHANKUMAR, AGED 49 YEARS,
                      ...  Petitioner
2. CHANDRAN PILLAI, AGED ABOUT 62

                        Vs


1. SANTHAKUMARI KUNJAMMA AND ANOTHER
                       ...       Respondent

                For Petitioner  :SRI.B.RAMACHANDRAN

                For Respondent  :SRI.R.DIVAKARAN

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

 Dated :17/07/2009

 O R D E R
              S.S.SATHEESACHANDRAN, J.
                   -------------------------------
             W.P.(C).NO.36032 OF 2008 (M)
                 -----------------------------------
           Dated this the 17th day of July, 2009

                       J U D G M E N T

The writ petition is filed seeking the following reliefs:

i. to call for records leading to Exts.P10 and P11
and scrutinise the same and quash Exts.P10 and
P11 and direct the court below to consider the
matter afresh by duly considering Exts.P8 and P9
objections properly and judiciously.

ii. to issue any other appropriate writ, direction
or order which the Honourable Court deem fit
and proper to grant in the facts and
circumstances of this case; and

iii. to allow cost of this writ petition.

2. The 2nd defendant in O.S.No.1558/2005 on the file of

the Munsiff’s Court, Ernakulam is the petitioner herein. Suit

is one for perpetual prohibitory injunction and the

respondents are the plaintiffs. Exts.P10 and P11 orders were

passed in the suit appointing an advocate commissioner to

WPC.36032/08 2

determine certain matters sought for by the plaintiff in a work

memo filed by him, overruling the objections raised by the

defendant who contended that there is no pathway in

existence in respect of which the plaintiff sought for the

decree of injunction. The above orders are impeached in the

writ petition invoking the supervisory jurisdiction vested with

this Court under Article 227 of the Constitution of India.

2. I heard the counsel on both sides. Having regard to

the submissions made and the facts and circumstances

presented with reference to Exts.P10 and P11 orders and

other materials tendered in the writ petition, I find the

appointment of an advocate commissioner to collect evidence

is absolutely essential for a proper adjudication of the suit for

a fair disposal. The learned counsel for the petitioner

contended that no pathway as claimed by the plaintiff is in

existence and as such the appointment of a commissioner is a

futile exercise. Whatever that be, when the plaintiff has

sought for a decree of injunction, the identity of the pathway

in respect of which the injunction is sought for has to be

WPC.36032/08 3

determined. The question whether it is in existence or not is a

matter to be decided by the court on the materials to be

tendered by both parties after giving them reasonable

opportunity to establish their respective case. There is no

merit in the writ petition, and it is dismissed.

S.S.SATHEESACHANDRAN
JUDGE

prp