IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 23547 of 2008(C) 1. LALITHA BAI, D/O.AMBUJAKSHI AMMA, ... Petitioner Vs 1. BINU VASANTH, S/O.T.SETHUNATH, ... Respondent 2. BINDHU VASANTH, D/O.T.SETHUNATH, 3. BAIJU VASANTH, S/O.T.SETHUNATH, For Petitioner :SRI.G.S.REGHUNATH For Respondent : No Appearance The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :05/08/2008 O R D E R M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 23547 OF 2008 ............................................ DATED THIS THE 5th DAY OF AUGUST, 2008 JUDGMENT
Petitioner is the second defendant and respondents, the
plaintiffs in O.S.1699 of 2004 on the file of Munsiff Court,
Thiruvananthapuram. Suit was filed for declaration of their title
to plaint G schedule and to recover possession of plaint H
schedule property and for a mandatory injunction to demolish
the structure in plaint H schedule property and for incidental
reliefs. Respondents filed I.A.6909 of 2006, an application for
appointment of a Commission to measure and locate plaint G and
H schedule properties. Petitioner filed Ext.P5 detailed objection
consisting of 14 paragraphs.
2. Learned Munsiff, under Ext.P6 order, allowed the
petition, which reads as follows:-
“Heard both sides. As a report and
plan is highly necessary for proper
adjudication, I.A is allowed.
Advocate Gireesh P Raja is appointed as Commissioner and Sri K.R.Chandrakumar as WP(C) 23547/2008 2 Surveyor. Commission Bata Rs.2000/- and Surveyor Bata Rs.600/- shall be deposited. Note the points and file Commission Report".
This petition is filed under Article 227 of Constitution of India
challenging Ext.P6 order.
3. Learned counsel appearing for petitioner was heard.
4. In view of the order to be passed in this petition, it is not
necessary to issue notice to respondents.
5. The argument of the learned counsel is that in spite of
Ext.P5 objection, learned Munsiff did not consider the objection
and allowed the application and therefore Ext.P6 order is to be
6. Though learned Munsiff allowed the application finding
that a report by a Commissioner is highly necessary for
adjudication of the dispute involved in the suit, there is force in
the submission of the learned counsel that learned Munsiff did
not consider Ext.P5 objection. Learned counsel pointed out that
respondents have earlier instituted a suit and the properties
were identified and a report was submitted and when the suit
WP(C) 23547/2008 3
was in the special list, it was withdrawn without obtaining liberty
to file fresh suit and the description of the plaint schedule
properties are not in accordance with the partition deed under
which respondents are also claiming title and therefore learned
Munsiff should not have appointed the Commission without
considering the objection.
7. As is clear from Ext.P6 order, learned Munsiff did not
consider the objections raised by petitioner. Though an order
could be brief, it cannot be blank. As Ext.P6 order is blank, the
order is quashed. I.A.6909 of 2006 is remanded to Additional
Munsiff Court, Thiruvananthapuram for fresh disposal in
accordance with law. Learned Munsiff to consider the objections
raised by petitioner to I.A.6909 of 2006 and pass appropriate
orders after hearing both the parties in accordance with law.
M.SASIDHARAN NAMBIAR, JUDGE