High Court Kerala High Court

Moideen Kutty vs Saidalavi on 18 March, 2010

Kerala High Court
Moideen Kutty vs Saidalavi on 18 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 9023 of 2010(O)


1. MOIDEEN KUTTY, S/O. KIZHAKKAM KUNNATH
                      ...  Petitioner

                        Vs



1. SAIDALAVI, S/O. KIZHAKKAM KUNNATH
                       ...       Respondent

                For Petitioner  :SRI.K.RAMACHANDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :18/03/2010

 O R D E R
                     P. BHAVADASAN, J.
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                   W.P.(C) No. 9023 of 2010
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           Dated this the 18th day of March, 2010

                           JUDGMENT

In this petition under Article 227 of the Constitution

of India the petitioner assails Ext.P6 order.

2. Petitioner is the defendant in O.S. No.186 of 2006

on the file of the Munsiff’s Court, Tirur. The suit is filed by

the respondent for setting out a way to his property through

the petitioner’s property. The petitioner filed I.A. No.164 of

2010 for remitting commissioner’s report and sketch dated

8-1-2010. According to him, the Commissioner has gone

wrong in preparing the sketch and in not giving necessary

details. The complaint is that the measurement now made is

not in terms of the survey measurements. Matters also

mentioned in the petition, according to the petitioner, the

Commissioner ought to have verified. According to him, the

W.P.(C) No. 9023/2010 2

court below went wrong in rejecting the prayer for

remitting the commissioner’s report.

3. It appears that the plaintiff claimed a right of way

through the property owned by the defendant who is the

petitioner herein. The defendant disputed the existence of

way and submitted that the plaintiff has no right to use any

portion of his property.

4. The learned counsel for the petitioner invites

attention of this Court to observations made in paragraphs

14, 15 and 16 of the impugned order and it is pointed out

that these observations may cause difficulties and may

prove detrimental to the petitioner at the time of hearing

the suit. So that safeguard needs to be made in that regard.

5. There is substance of the case of the petitioner. But

what ever that be, the petitioner will have an opportunity at

the time of trial to establish that the commissioner’s report

and plan are not acceptable.

6. The court below may not justify the observations

made in paragraphs 14, 15 and 16. However, those

W.P.(C) No. 9023/2010 3

observation can be treated only a tentative for the purpose

of disposing of the E.A.

7. There can be no doubt that these aspects are to be

considered at the time of trial. It will sufficient to give a

direction to the trial court to dispose of the suit

untrammelled by any of the observations made in Ext.P6

order especially in paragraphs 14, 15 and 16.

8. In the result, this petition is disposed of as

follows:-

a) The Munsiff’s Court, Tirur is directed to dispose

of O. S. No.186 of 2006 untrammelled by any of

the observations made in Ext.P6 order, especially

paragraphs 14, 15 and 16, while disposing of I.A.

No.164 of 2010 and based evidence adduced in

the case.

b) The existence of way will be determined on the

basis of evidence adduced on trial.

c) If the petitioner establishes during the trial that

commissioner’s report and plan are not

W.P.(C) No. 9023/2010 4

acceptable, he shall have at liberty to seek fresh

commission report and plan.

P.BHAVADASAN, JUDGE.

mn.