IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3744 of 2008(U)
1. XAVIER, S/O.KOCHU POULO, AGED 50 YEARS,
... Petitioner
2. SATHYAVRATHAN, S/O.KRISHNAN KUTTY,
3. RAMANI, W/O.SURENDRAN, AGED 45 YEARS,
4. SURAJ LAL, S/O.SURENDRAN, AGED 27 YEARS,
5. SOORYA LAL, S/O.SURENDRAN, AGED 27 YEARS
Vs
1. VARKEY, S/O.KURIAN, AGED ABOUT 61 YEARS
... Respondent
For Petitioner :SRI.SHAJI P.CHALY
For Respondent :SRI.ABRAHAM MATHEW (VETTOOR)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No. 3744 of 2008
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Dated this the 23rd June, 2008.
J U D G M E N T
Petitioners are plaintiffs in O.S.No.644 of 1999, on the
file of Munsiff Court, Aluva. The suit is one for injunction in respect of
the right of way claimed over plaint ‘E’ schedule property. A
commission was appointed. Commissioner originally submitted Ext.P3
report along with a sketch, wherein plaint ‘E’ schedule property was
demarcated having a width of 9.9 feet, 8.6 feet and 9 feet at different
parts of the way. Subsequently, a survey commission was taken and
the same Commissioner submitted Ext.P4 report along with a survey
plan. In Ext.P4 report, Commissioner has shown the width of the way
as 3.2 meters on the northern end and 2.1 meters on the southern
end. Petitioners did not file objection to the report in time. When the
suit was included in the list, petitioners filed Ext.P8 petition to remit
the report. An objection was also filed by the respondent. Under
Ext.P14 order, the petition was dismissed. It is challenged in this
petition filed under Article 227 of the Constitution of India.
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2. The learned counsel appearing for the petitioners
and learned counsel appearing for respondent were heard.
3. The learned counsel appearing for the petitioners
pointed out that the very same Commissioner has earlier inspected the
property, measured plaint ‘E’ schedule property and reported the width
of the way, which is more than the width subsequently reported in
Ext.P4 report and though petition filed to remit the report was
belated, in the interest of justice, learned Munsiff should have allowed
the application. It was also pointed out that even in the original
written statement, respondent admitted that the width of the plaint ‘E’
schedule property is eight feet and because of Ext.P4 report, that
admission was taken away by filing an application under Rule 17 of
Order VI of Code of Civil Procedure, and taking advantage of the
mistake in Ext.P4 report, respondent has instituted O.S.No.518 of
2005, claiming that width of the way is only 8 links and in such
circumstances, for an effective decree to be passed in the suit, learned
Munsiff should have allowed the application.
4. The learned counsel appearing for the respondent
argued that though Commissioner has originally given the width of the
way in Ext.P3 report, at the time of survey commission, the width of
W.P.(C) No.3744/2008
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the way was properly measured and it was found that width originally
reported in Ext.P3 is not correct, and in such circumstances, there is
no necessity to remit the report back to the commissioner. The
learned counsel also argued that though Ext.P4 report was filed on
November, 2004, petition to remit the report was filed only in 2008,
when the suit was listed, and in such circumstances, learned Munsiff
was justified in not remitting the report. It was also argued that
written statement was also amended based on Ext.P4 report and that
order was not challenged.
5. True, there was a delay in filing the application to
remit the report. But for that reason alone, learned Munsiff should not
have dismissed the application, without considering the question
whether any clarification is necessary to Ext.P4 report in the light of
discrepancy in Exts.P3 and P4 reports. Ext.P3 report shows that when
the Commissioner measured the width of plaint ‘E’ schedule property,
it was having a width of 8.6 to 9.9 feet. In Ext.P4 report, the width is
reported as 2.1 meters to 3.2 meters. In such circumstances, Munsiff
should have remitted the report, as sought for, to file a further report,
taking into consideration the objections filed by the petitioners, so that
discrepancy, if any, could have been clarified by the Commissioner.
W.P.(C) No.3744/2008
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6. In such circumstances, Ext.P14 order is quashed.
I.A.No.170/2008 stands allowed. Munsiff is directed to remit the
report back to the Commissioner to submit a further report, at the
expense of the petitioners, taking into consideration, the objections
raised by the petitioners, clarifying the discrepancy with regard to the
width of the plaint ‘E’ schedule property, in Exts.P3 and P4 reports.
The Munsiff to expedite the trial.
The writ petition is disposed as above.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.