IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16161 of 2008(Y)
1. M.A.LAILA BEEVI
... Petitioner
Vs
1. P.H.HAFSA SHAMSUDDIN,
... Respondent
2. ABDUL RAHIM, S/O. MUHAMMED KUNJU
3. P.K.AYSHAKUTTY,
4. RAJU MALAYIL, S/O. GEORGE, S.R.M.ROAD
5. R.DILEEP, S/O. RAMAN MENON,
6. SAJAN
7. E.K.SETHU,S/O. VELAYUDHAN PILLAI,
8. ASWATHI ESTATE AND PROPERTIES,
9. ABDUL KARIM, S/O. KOCHUNNY,
For Petitioner :SRI.C.KHALID
For Respondent :SRI.ALIAS M.CHERIAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :02/12/2008
O R D E R
K.P.BALACHANDRAN, J.
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W. P. C. No.16161 of 2008
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Dated this the 2nd day of December, 2008
JUDGMENT
The Writ Petition is filed assailing
Ext.P2 order passed by the Munsiff refusing to
issue Commission in O.S.2029/98 on the
application of the petitioner/plaintiff.
2. The petitioner/Laila Beevi is the
plaintiff in O.S.2029/98 on the file of the
Munsiff’s Court, Ernakulam. It is common case
that the said case was ordered to be tried
along with O.S.830/95, O.S.1696/96 and
O.S.1699/96. I.A.2664/08 was filed by the
petitioner in O.S.2029/98 to issue an urgent
commission claiming for a consolidated report
and plan drawn to scale showing the properties
scheduled to the plaint in O.S.830/95
O.S.1696/96 and O.S.1699/96 with the pathways
claimed by the plaintiffs therein. The learned
Munsiff vide Ext.P2 order considered the
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request so made and dismissed the I.A.
refusing to issue a commission as prayed for
and hence, this Writ Petition assailing the
said Ext.P2 order.
3. It is not in dispute that O.S.830/95
O.S.1696/96 and O.S.1699/96 are suits filed
against the petitioner/plaintiff claiming
right of way through her property having an
extent of 38 and odd cents. The court below
has observed that in O.S.2029/98 at the
instance of the petitioner herself a
commission was issued vide I.A.7927/1998 and
the Commissioner filed report and thereafter
another Commissioner was appointed and that
Commissioner filed report dt.15/09/07 after
measurement of the properties and that is
Ext.C5 in the suit. Similarly in O.S.830/95
vide I.A.3389/95 Ext.C1 commission report was
got down and thereafter in the said suit
itself another Commissioner inspected the
W. P. C. No.16161 of 2008 -3-
property and filed Ext.C2 report on 23/10/96.
Ext.C3 is another commission report obtained
conducting measurement of the properties with
the help of Thaluk Surveyor. In O.S.1696/96 a
Commission was issued with the assistance of a
Thaluk Surveyor and Ext.C4 Commission Report
was obtained on 23/10/99. The court has
observed that all the above commissions were
being issued after hearing both sides and that
the points sought to be reported in the
present application are also reported by
previous commissions and that the suits which
are ordered to be jointly tried were listed
for trial on more than two occasions and that
the petitioner had no case then that a
commission to get down a consolidated report
is necessary as is prayed for now. The court
has further observed that there is no reason
stated for appointment of another Commissioner
and that the available data and details are
W. P. C. No.16161 of 2008 -4-
sufficient for a fair and just disposal of all
the connected cases that are being tried along
with O.S.2029/98 and that the Commissioners
have given all the relevant details on all
material aspects so that the request for
appointment of another Commissioner or the
same Commissioner for submission of a
consolidated report is totally out of place.
The commission reports so marked already in
the case examining PWs.1 to 4 are Exts.C1 to
C5.
4. It is further observed that this Court
has vide judgment in W.P.C.5554/08 dt.15/02/08
directed the trial court to include the case
in the list for trial in the last week of
March and accordingly, all the suits which are
being jointly tried were listed for trial on
22/03/08 and the present commission application
is filed on the day on which the case stood
posted for trial in the list on 22/03/08. The
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court has further observed that the petitioner
has no case that the two commission reports
obtained in her own case has to be set aside.
Hence, so long as those reports are there and
are not set aside, it is improper to issue a
fresh commission.
5. It is submitted before me by the
counsel for the respondent who appears for the
plaintiffs in the other connected suits that
ex parte commissions were issued in O.S.
Nos.830/95 and 1696/96 and in 2029/98 and
thereafter again commission was issued with
the assistance of a surveyor in all those
suits and that commission issued in O.S.
2029/98 for measurement of the property was
even subsequent to order of joint trial of all
the suits and that a fresh commission again
for measurement and for noting the details
would be most inappropriate.
W. P. C. No.16161 of 2008 -6-
6. Counsel for the respondents also
submits that the plaintiffs in all the
connected suits who claim pathway through the
property of the plaintiffs in O.S.2029/98
namely Smt.Laila Beevi who is the petitioner
herein are claiming the same pathway through
the property of the petitioner and it is not
that they are claiming different pathways for
their use.
7. In the light of the discussions made
above, I am of the view that there is no merit
in this Writ Petition and that Ext.P2 order
passed by the court below dismissing I.A.
2664/08 for issuance of a fresh commission has
only to be confirmed.
8. In the result, I dismiss this Writ
Petition.
K.P.BALACHANDRAN,
JUDGE
kns/-