Cicily Mathew & Others vs George & Another on 4 November, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 31451 of 2009(O)



1. CICILY MATHEW & OTHERS
                      ...  Petitioner

                        Vs

1. GEORGE & ANOTHER
                       ...       Respondent

                For Petitioner  :SRI.ABRAHAM P.GEORGE

                For Respondent  : No Appearance

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

 Dated :04/11/2009

 O R D E R
              S.S.SATHEESACHANDRAN, J.
                   -------------------------------
              W.P.(C).NO.31451 OF 2009 (O)
                 -----------------------------------
       Dated this the 4th day of November, 2009

                       J U D G M E N T

Petitioners are the plaintiffs in O.S.No.1132 of 2009 on

the file of the IInd Additional Munsiff Court, Ernakulam. Suit

is one for injunction, both prohibitory and mandatory, and the

respondents are the defendants. Suit property originally

belonged to the father of the plaintiffs and the 1st defendant,

and at present, the 1st defendant is making attempts to remove

the household articles and also commit waste in the property,

is the case of the plaintiffs. With the suit, the plaintiffs moved

two applications, one for an injunction against the 1st

defendant and another for appointment of a Commission to

conduct a local inspection to ascertain the points sought for.

The learned Munsiff ordered notice on both the applications.

The writ petition has been filed challenging the propriety and

also correctness of the order passed by the learned Munsiff in

issuing notice on the commission application.

WPC.31451/09 2

2. I heard the learned counsel for the petitioners. If

notice is given to the defendants before the visit of the

Commissioner, then the very purpose of the suit itself will be

defeated, according to the counsel, as there is every chance of

the defendants removing the household articles before the

visit of the Commissioner. So much so, without notice, the

Commissioner has to be directed to conduct the local

inspection and ascertain the matters sought for in the

application of the plaintiffs, is the plea canvassed by the

counsel. Whatever be the merits of the case canvassed by the

petitioners, I find the petitioners have to invite the attention of

the court below as to the emergent need for the Commissioner

to conduct local inspection without notice to the defendants.

It is open to the petitioners to move an application before the

learned Munsiff for reviewing the order passed earlier for

issuing notice on the commission application. If any such

application is filed by the petitioner as indicated above, within

one week from the date of this judgment, the court below shall

consider and pass appropriate orders in accordance with law.

WPC.31451/09 3

With the above direction, the writ petition is disposed.

Handover a copy of the judgment to the learned counsel

for the petitioner on usual terms and send a copy to the court

concerned forthwith.

S.S.SATHEESACHANDRAN
JUDGE

prp