IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 2296 of 2001(A)
1. JOSEY
... Petitioner
Vs
1. RAMAKRISHNAN
... Respondent
For Petitioner :SRI.K.N.NARAYANA PILLAI
For Respondent :SRI.M.P.ABRAHAM
The Hon'ble MR. Justice K.T.SANKARAN
Dated :07/12/2007
O R D E R
K.T.SANKARAN, J.
--------------------------------------------
C.R.P. NO. 2296 OF 2001 A
--------------------------------------------
Dated this the 7th day of December, 2007
O R D E R
Revision petitioner, the first plaintiff in O.S.No.585 of 1995, on the
file of the Munsiff’s Court, North Paravoor, challenges the order dated
4.9.2000, by which the court below dismissed I.A.No.367 of 2000.
2. The suit is for prohibitory injunction restraining the defendant
from trespassing into the plaint B schedule pathway and constructing a
compound wall making alteration to the existing pathway or reducing its
width. An application was filed by the plaintiffs to appoint a Commissioner
to report about the lie and nature of the plaint B schedule pathway. It is
stated by the revision petitioner that the Commissioner reported that he
was not in a position to identify the exact boundary of the defendant’s
property, since the fencing and the survey stones were removed.
3. I.A.No.367 of 2000 was filed by the plaintiffs for appointing a
Commissioner to locate the boundary of the plaint B schedule pathway
and to measure the property with reference to the survey records and with
the help of the Taluk Surveyor. On 26.8.2000, Advocate A.D.Beena was
appointed as the Commissioner. The Commissioner was directed to
submit the report on 30.8.2000. It is stated that the inspection of the
C.R.P. NO.2296 OF 2001
:: 2 ::
property was fixed on 29.8.2000. On that day, according to the plaintiffs,
there was a hartal and, therefore, the Commissioner could not inspect the
property. The plaintiffs also could not make arrangements for the visit of
the Commissioner. On 30.8.2000, the Commissioner surrendered the
warrant appointing her as the Commissioner with a report stating that the
plaintiffs did not co-operate. The court below dismissed the application
for appointing a Commissioner on that ground, which is under challenge
in this Revision.
4. In the facts and circumstances of the case, I am of the view that
the court below should have granted an opportunity to the plaintiffs to
make arrangements so that the Commissioner could inspect the property
on a near date. Accordingly, I am of the view that the order impugned is
liable to be set aside.
5. Accordingly, the Civil Revision Petition is allowed and the order
impugned is set aside. The Commissioner who was appointed by the
court earlier (Advocate A.D.Beena) or, if she is not available, any other
Advocate shall be appointed by the court for the inspection of the
property. The plaintiffs shall co-operate with the Commissioner in
carrying out the work. If the court finds that the plaintiffs should be
directed to pay the commission batta in advance, appropriate orders can
C.R.P. NO.2296 OF 2001
:: 3 ::
be passed for the same, so as to ensure full co-operation from the side of
the plaintiffs. The court below may direct the Commissioner to complete
the inspection and to file the report without delay.
The Civil Revision Petition is allowed as indicated above. No order
as to costs.
(K.T.SANKARAN)
Judge
ahz/
K.T.SANKARAN, J.
——————————————-
——————————————-
C.R.P.NO.2296 OF 2001 A
O R D E R
7th December, 2007
——————————————-