IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19696 of 2009(O)
1. MULLAMBALATH ABDUL GAFOOR, S/O.UMMAR,
... Petitioner
2. MULLAMBALATH AYISHA, W/O.UMMER,
Vs
1. MULLAMBALATH HAMSA, S/O.ATHRUMANKUTTY,
... Respondent
For Petitioner :SRI.K.M.FIROZ
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :14/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 19696 OF 2009 O
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Dated this the 14th day of July, 2009
J U D G M E N T
The writ petition is field by the defendant in
OS.No.472/08 on the file of the Additional Munsiff Court-I,
Kozhikode. Respondent is the plaintiff in the suit. Suit is one for
injunction. An Advocate Commissioner appointed by the court
conducted a local inspection and filed a report and plan.
Grievance canvassed by the petitioner is that at the time when the
Commissioner conducted inspection and prepared the report and
plan, he was abroad and later on his return, after going through
the report and plan, he found it was against the actual state of
affairs present at the site where the subject matter of the suit is
situated. The plaintiff claimed a right of way through his property,
which according to the defendant, is non existent and there is an
alternate way outside his property. The Commissioner has not
noted the alternate way and has further falsely reported of a way
through his property, is the case of the petitioner. He moved an
application for setting aside the report and plan and, in the enquiry
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: 2 :
of which the Advocate Commissioner was examined and some
photographs were also exhibited. The learned Munsiff, after
considering the materials produced and hearing the counsel on
both sides, turned down the request of the petitioner for remitting
the report prepared by the Commissioner.
2. I heard the learned counsel for the petitioner. Having
regard to the submissions made and perusing Ext.P6 order
passed by the court below impugned in the writ petition, I find no
notice to the respondent is necessary and it is dispensed with.
Copy of the report and plan prepared by the Commissioner have
been produced as Exts.P3 and P3(a) respectively. Perusing
Ext.P3(a), I find it is only a rough sketch. That being so, if any
dispute is involved in the suit with respect to the identification of
the pathway in respect of which reliefs are sought for, needless to
point out such identification has to be made. Suit being one for
injunction and that too in respect of a pathway before granting a
decree the pathway with all necessary particulars has to be
identified. A rough sketch showing a pathway is not sufficient to
grant a decree of injunction. So much so, the order passed by the
WPC.19696/09
: 3 :
learned Munsiff turning down the request of the petitioner/
defendant to remit the Commissioner’s report and the rough
sketch prepared by him may not be of much significance now,
provided steps are taken for identifying the pathway. Having
regard to the disputes arising for adjudication, if any application is
moved by the plaintiff or the defendant for identification of the
pathway and its measurement, through the Advocate
Commissioner, the court below has to consider that with reference
to the issues settled in the suit. The accepted rule that without
setting aside a Commission report and plan, a second
Commission cannot be appointed as covered by the decision in
Swami Premananda Bharathi Vs. Swami Yogananda Bharathi
[1985 KLT 144] will not stand in the way of having a second
Commission where it is for measuring of and identifying the suit
property when the earlier one was only for determination of some
other aspects and that too carried out only by preparing a rough
sketch with a report. I make it clear that Ext.P6 order passed by
the learned Munsiff will not stand in the way of the plaintiff or
defendant in moving an application for appointment of a
WPC.19696/09
: 4 :
Commission, preferably by the same Commissioner, for
identification and measurement of the B schedule pathway
claimed, which according to the defendant, is nonexistent.
Subject to the above observations, the writ petition is closed.
Sd/-
(S.S. SATHEESACHANDRAN, JUDGE)
aks
// True Copy //
P.A. to Judge