IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36032 of 2008(M)
1. N.MOHANKUMAR, AGED 49 YEARS,
... Petitioner
2. CHANDRAN PILLAI, AGED ABOUT 62
Vs
1. SANTHAKUMARI KUNJAMMA AND ANOTHER
... Respondent
For Petitioner :SRI.B.RAMACHANDRAN
For Respondent :SRI.R.DIVAKARAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.36032 OF 2008 (M)
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Dated this the 17th day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
i. to call for records leading to Exts.P10 and P11
and scrutinise the same and quash Exts.P10 and
P11 and direct the court below to consider the
matter afresh by duly considering Exts.P8 and P9
objections properly and judiciously.
ii. to issue any other appropriate writ, direction
or order which the Honourable Court deem fit
and proper to grant in the facts and
circumstances of this case; and
iii. to allow cost of this writ petition.
2. The 2nd defendant in O.S.No.1558/2005 on the file of
the Munsiff’s Court, Ernakulam is the petitioner herein. Suit
is one for perpetual prohibitory injunction and the
respondents are the plaintiffs. Exts.P10 and P11 orders were
passed in the suit appointing an advocate commissioner to
WPC.36032/08 2
determine certain matters sought for by the plaintiff in a work
memo filed by him, overruling the objections raised by the
defendant who contended that there is no pathway in
existence in respect of which the plaintiff sought for the
decree of injunction. The above orders are impeached in the
writ petition invoking the supervisory jurisdiction vested with
this Court under Article 227 of the Constitution of India.
2. I heard the counsel on both sides. Having regard to
the submissions made and the facts and circumstances
presented with reference to Exts.P10 and P11 orders and
other materials tendered in the writ petition, I find the
appointment of an advocate commissioner to collect evidence
is absolutely essential for a proper adjudication of the suit for
a fair disposal. The learned counsel for the petitioner
contended that no pathway as claimed by the plaintiff is in
existence and as such the appointment of a commissioner is a
futile exercise. Whatever that be, when the plaintiff has
sought for a decree of injunction, the identity of the pathway
in respect of which the injunction is sought for has to be
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determined. The question whether it is in existence or not is a
matter to be decided by the court on the materials to be
tendered by both parties after giving them reasonable
opportunity to establish their respective case. There is no
merit in the writ petition, and it is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp