Rasiya vs Muhammed Kunhi on 17 November, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 26980 of 2009(O)


1. RASIYA, W/O. B.M. ABOOBACKER,
                      ...  Petitioner

                        Vs



1. MUHAMMED KUNHI,
                       ...       Respondent

                For Petitioner  :SRI.P.K.MUHAMMED

                For Respondent  :SRI.JAWAHAR JOSE

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

 Dated :17/11/2009

 O R D E R
                   S.S.SATHEESACHANDRAN, J.
                  -----------------------------------
                  W.P.(C).No.26980 of 2009 - O
                    ---------------------------------
           Dated this the 17th day of November, 2009

                           J U D G M E N T

Petitioner is the plaintiff in O.S.No.137 of 2009 on the file of

the Munsiff Court, Kasargode. Suit is one for injunction and the

respondent, the defendant. Suit claim was resisted by the

defendant filing written statement in which among other

contentions the description of the plaint A and B schedule were

also disputed as incorrect. Plaintiff with the suit moved an

application for appointment of a commission to ascertain certain

matters and that being allowed, the commissioner after

conducting local inspection filed a report with rough sketch. The

defendant thereafter moved another commission application, but,

that was declined. Pursuant thereto, the plaintiff moved an

application for amendment of the plaint to incorporate some

allegations that over B schedule way he has got a right of

prescriptive easement and necessity. That amendment

application was allowed. After allowing of the amendment

application, plaintiff moved Ext.P4 application for appointment of

W.P.(C).No.26980 of 2009 – O

2

a commission to ascertain certain matters and also to prepare a

plan showing B schedule. Ext.P4 application was objected to by

the defendant. Learned Munsiff after hearing both sides

dismissed Ext.P4 application vide Ext.P5 order. 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 Constitution of India.

2. I heard the counsel on both sides.

3. Perusing Ext.P5 order with reference to exhibits

produced, I find that the learned Munsiff dismissed Ext.P4

application apparently for the reason that in the suit a report had

already been collected. In the nature of the disputes canvassed

in the suit the learned Munsiff has expressed a view, a second

commission is not required as there is no dispute over the

identity of the suit property. Learned counsel for the petitioner

has handed over to me a copy of the written statement filed in

the suit. Perusal of the written statement shows that the

defendant had disputed the identity of the suit property.

That being so, no relief can be granted to the plaintiff in the

W.P.(C).No.26980 of 2009 – O

3

suit without identifying the suit property. The view expressed by

the learned Munsiff that there is no dispute regarding identity of

the plaint property is belied by the contentions raised in the

written statement. So much so, setting aside Ext.P5 order I

direct the court below to consider Ext.P4 application afresh and

pass appropriate orders. In case the defendant seeks for

ascertainment of any matters, in the event of Ext.P4 application

is entertained, that also shall be considered by the court below.

Writ petition is disposed of as above.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-