High Court Kerala High Court

Nalinam vs Harikrishnan on 25 June, 2008

Kerala High Court
Nalinam vs Harikrishnan on 25 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15613 of 2008(H)


1. NALINAM, W/O. JAGADEESAN NAIR
                      ...  Petitioner
2. JAGADEESAN NAIR, S/O. KOCHUNARAYANA

                        Vs



1. HARIKRISHNAN, S/O. RAMAN NAIR
                       ...       Respondent

2. C.R.JANARDANA PILLAI, S/O. RAGHAVAN

                For Petitioner  :SRI.V.CHITAMBARESH (SR.)

                For Respondent  :SRI.M.P.MADHAVANKUTTY

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :25/06/2008

 O R D E R
                   M.SASIDHARAN NAMBIAR, J.

                     -------------------------------

                      W.P.(C) No.15613 of 2008

                     -------------------------------

                    Dated this the 25th June, 2008.

                           J U D G M E N T

Petitioners are the defendants and respondents the

plaintiffs in O.S.No.196 of 2003, on the file of Munsiff Court,

Changanacherry. In their written statement, petitioners raised a

counter claim for damages. Though, earlier a commission was

appointed including a survey commission, and Commissioners have

submitted reports and plans, petitioners filed I.A.No.457/2008 for

appointment of an urgent commission contending that to destroy the

evidence, respondents destroyed the fence of the property and

thereby caused damages. Under Ext.P1 order, it was dismissed

holding that report submitted by the Commissioner is already

available. The order is challenged in this petition filed under Article

227 of the Constitution of India.

2. The learned senior counsel appearing for the

petitioners and learned counsel appearing for the respondents were

heard.

W.P.(C) No.15613 of 2008

2

3. The learned senior counsel for the petitioners

pointed out that the details sought to be verified and reported in

Ext.P3 petition are not the matters which were reported by the

Commissioners in the earlier reports, and they pertain to the damages

committed subsequent to the submission of the previous reports.

4. The learned counsel appearing for the respondents

points out that no damages in respect of those items is claimed, and in

such circumstances, there is no necessity to issue a commission. It

was also argued that a survey commission has already been appointed

and report and plan were submitted, and in such circumstances,

petitioners are not entitled to get appointed another Commission to

verify the boundary, as sought for under point No.5 in Ext.P3 petition.

5. There is force in the submission in respect of point

No.5 sought to be reported by the respondents. But point Nos.1 to 4

relate to the alleged damages committed subsequent to the

submission of the earlier reports. In such circumstances, learned

Munsiff was not justified in dismissing Ext.P3 petition in toto. Instead,

a Commission should have been appointed to verify and report points

Nos.1 to 4 sought for in Ext.P3. Therefore, to that extent, Ext.P1

order warrants interference.

W.P.(C) No.15613 of 2008

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The writ petition is allowed. I.A.No.457/2008 is allowed

in part. Learned Munsiff is directed to appoint the Commissioner who

filed the earlier report, if available at present to submit a report

verifying the points 1 to 4 sought for in Ext.P3 petition, or to any other

Commissioner, if not available.

M.SASIDHARAN NAMBIAR,
JUDGE

nj.