IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12970 of 2008(R)
1. PADMAKSHA PANICKER,UNNIVILASOM VEEDU
... Petitioner
2. GANGADHRA KURUP, SARATH BHAVAN
3. MOHANAN, AKHIL NIVAS,
4. SASI, BINDU BHAVAN
Vs
1. JOY UDAYAN,
... Respondent
For Petitioner :SRI.RAM MOHAN.G.
For Respondent :SRI.K.B.PRADEEP
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :02/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.12970 OF 2008 (R)
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Dated this the 2nd day of June, 2009
J U D G M E N T
The writ petition is filed under Article 227 of the
Constitution of India seeking the following reliefs:
i) to quash Ext.P12 order
ii) to allow Ext.P8 commission application
iii) to grant such other reliefs which are
deemed just and proper in the nature and
circumstances of the case.
2. Petitioners, four in number, are the defendants in
O.S.No.324/2006 pending on the file of the Munsiff’s Court,
Punalaur. Respondent is the plaintiff in the suit, which is one
for injunction both prohibitory and mandatory. At the
instance of the plaintiff, a Commissioner visited the suit
properties twice and after conducting local inspection on both
occasions, he had filed two reports. The defendants also
moved an application for appointment of a Commission, copy
of which is produced as Ext.P8, in which, among others, they
WPC.12970/08 2
sought for measurement of the suit properties with reference
to the title deeds of the plaintiff and also the survey records.
That application was initially allowed by the learned Munsiff,
which was challenged by the plaintiff before this Court. This
Court, disposing the writ petition moved by the plaintiff under
Ext.P11 judgment, set aside the order of the court below and
directed the Munsiff to consider Ext.P8 application afresh.
The learned Munsiff after hearing the counsel on both sides,
found that Ext.P8 application is devoid of any merit and the
application moved by the defendants for measuring out the
suit property was unwarranted since the suit property is
shown to be lying within well defined boundary walls.
Propriety and correctness of the order passed by the learned
Munsiff, copy of which is produced as Ext.P12 is challenged in
this writ petition by the defendants invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
3. I heard the counsel on both sides. The learned
counsel for the petitioners impeached the correctness of the
order contending that in the nature of the disputes involved
and defence raised in the written statement, identification of
WPC.12970/08 3
the suit property is essential. Countering the arguments
raised by the learned counsel for the petitioners, the counsel
appearing for the respondent/plaintiff submitted that relief
claimed in the suit is only injunction, both prohibitory and
mandatory, and if at all there was any discrepancy or default
on his part to identify the property, the plaintiff is bound to
suffer and the attempt of the defendants in seeking
measurement of the suit properties is mala fide as it is
intended to prolong and protract the litigation. Having regard
to the nature of the suit and the reliefs sought for, I find no
impropriety in the order passed by the learned Munsiff
dismissing the application moved by the defendants. If at all
the identification of the property is not established by
satisfactory evidence the plaintiff will suffer, and there is no
need for measuring of the property as desired by the
defendants in his commission application. Writ petition is
devoid of any merit, and it is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO. OF 2006 ()
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O R D E R
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23rd March, 2009