IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14585 of 2009(O)
1. MOLLY THOMAS, W/O. P.I.THOMAS,
... Petitioner
Vs
1. KALLARA GRAMA PANCHAYATH,
... Respondent
For Petitioner :SRI.M.P.MADHAVANKUTTY
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :28/05/2009
O R D E R
V. RAMKUMAR, J.
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W.P.(c).No.14585 of 2009
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Dated this the 28th day of May, 2009
JUDGMENT
The petitioner, who is the plaintiff in O.S.No.44 of 2008
on the file of the Munsiff’s Court, Vaikom challenges Ext.P5
order dated 17.10.20080 as per which the learned Munsiff
has dismissed the application filed by the petitioner as
I.A.No.1798/2008 for the issuance of a second Commission.
The said suit is one for a perpetual injunction restraining
defendants from trespassing into the plaint schedule property
or from erecting permanent structures and for removal of
obstruction caused by the defendants in the plaint schedule
property. The petitioner had already taken out a Commission
and there was also a report submitted by the Commissioner.
The defendants filed a written statement wherein it was,
inter alia, contended that the pathway relied on by the
plaintiff is not in existence and that the plaintiff has an
alternative pathway. It was at a time when the suit was
listed for trial that the petitioner filed the present
W.P.(c).No. 14585 of 2009
2
application on 16.10.2008 seeking the appointment of a second
Advocate Commission to show that the stand taken by the
defendant is not correct. The said application has been
dismissed as per Ext.P5 order.
2. The question of disproving the defendant’s contention
that the pathway relied on by the plaintiff is not in existence and
that the plaintiff has an alternative pathway will arise only if and
when the defendant substantiates the said contention. So long
as the said contention of the defendant remains in the realm of
pleadings, there was no necessity for the plaintiff to file an
application for 2nd Commission or the submission of a second
report. The application was thus rightly dismissed by the court
below.
This writ petition is dismissed without prejudice to the right
of the petitioner to seek appropriate reliefs if and when the
defendant proves that the pathway relied on by the plaintiff is
not in existence or that the plaintiff has an alternative pathway
as stated in the written statement.
Dated this the 28th day of May, 2009.
V. RAMKUMAR, JUDGE
sj