IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21608 of 2010(O)
1. PUNNAKKOTTU PATHUKUTTY,
... Petitioner
Vs
1. LATHEEF, S/O.MOIDEENKUTTY, AGED 42 YEARS
... Respondent
2. ASHRAF, S/O.MOIDEENKUTTY, AGED 37 YEARS,
3. MUHAMMED, S/O.MOIDEENKUTTY, AGED 35YEARS
For Petitioner :SRI.K.M.FIROZ
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/10/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P (C) No.21608 of 2010
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Dated this the 22nd day of October, 2010
J U D G M E N T
Respondent though served remains absent.
2. Plaintiff in O.S.No.543 of 2009 of the court of learned
Additional Munsiff-I, Kozhikode challenges Ext.P8, order refusing to
remit the report submitted by the Advocate Commissioner and to
conduct further investigation by the Advocate Commissioner
regarding the damage allegedly suffered by the petitioner on account
of the act of respondents and identify the suit property properly.
Petitioner sued for a decree for prohibitory injunction against
respondents trespassing into the suit property. There was an order of
interim injunction granted in favour of petitioner and the Advocate
Commissioner inspected the property and submitted report. According
to the Advocate Commissioner, on the north of suit property is
Waynad road and on its east and south of the property there is
pathway. It is the case of petitioner that violating the order of
injunction respondents demolished a portion of boundary of the suit
property. Advocate Commissioner again inspected the property and
submitted report. It is the grievance of petitioner that Advocate
Commissioner did not assess damage caused by demolition of the
W.P.C.No.21608 of 2010
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boundary. It is also the grievance of petitioner that there is no proper
identification of property and the report of Advocate Commissioner
that on the south of suit property there is pathway is not correct.
Petitioner filed I.A.No.805 of 2010 to remit the report for further
investigation, collect evidence regarding damage caused and for
proper identification of the property. That application was dismissed
by the learned Munsiff vide Ext.P8, order observing inter alia that if
further datas are required or the court finds it to be necessary to
depute the Advocate Commissioner again, Ext.P8, order will not
preclude the court from doing so and that at present, the application
cannot be entertained. Learned counsel has referred me to Exts.P7(a),
plan of the property said to be prepared by a private surveyor which
according to learned counsel revealed correct lie and identity of the
suit property.
3. I am told that the case is coming up for trial in the list on
25-10-2010. In the light of the observation made by learned Munsiff
which I have stated above that if necessary the court will depute a
Commissioner again for reporting matters required for the decision of
the case, I do not find reason to interfere in the matter. I make it clear
that it will be open to the petitioner to adduce evidence in support of
his case as to the lie and identity of property as revealed by the plan
prepared by the private surveyor and if circumstances warranted, it
W.P.C.No.21608 of 2010
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will be open to the learned Munsiff to depute the same Commissioner
or another Commissioner for identification of the property or collect
further datas as are required for a just and proper decision of the suit.
With the above observation this petition is closed.
THOMAS P JOSEPH
JUDGE
Sbna/