IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32493 of 2009(O)
1. SUBRAMUNIAN, S/O.APPUKUTTAN,
... Petitioner
2. SUSHAMA, W/O.SUBRAMUNIAN,
Vs
1. THRISSUR CORPORATION,
... Respondent
2. THOMAS, S/O.DEVASSY,
For Petitioner :SRI.M.K.DILEEP KUMAR
For Respondent :SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/12/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.32493 OF 2009 (O)
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Dated this the 17th day of December, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following
relief:
i. to issue a writ of certiorari or such other
writ or order quashing Ext.P5 order of the
Second Additional Munsiff’s Court,
Thrissur.
2. Petitioners are the plaintiffs in O.S.No.3216 of 2006
on the file of the Munsiff Court, Thrissur. Suit is for
perpetual prohibitory injunction and the respondents are the
defendants. The dispute involved in the suit relate to a
pathway which is described as ‘B’ schedule, in respect of
which, the plaintiffs have sought for a prohibitory injunction
restraining the defendants from reducing its width without the
WPC.32493/09 2
consent of the plaintiffs. Suit claim of injunction is resisted by
the defendants. The 1st defendant is a local authority, which
has contended that it is an unnecessary party. Ext.P1 is the
copy of the plaint and Ext.P2 is the copy of the written
statement by the 2nd defendant who disputing the claim of the
plaintiff over B schedule had also challenged the identity and
description of B schedule pathway. With the suit, the plaintiff
had moved an application for appointment of a commission
and that being allowed, a commissioner had previously filed a
report after conducting local inspection. After issues were
cast in the suit on the basis of the pleadings, the plaintiff
applied again for taking out a commission to measure out the
property and prepare a report and plan with the assistance of
a surveyor. The learned Munsiff, after hearing both sides,
dismissed that application vide Ext.P5 order holding that the
previous report contained necessary particulars with respect
to the B schedule property in respect of which disputes are
raised in the suit. Propriety and correctness of Ext.P5 order is
challenged in the writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
WPC.32493/09 3
Constitution of India.
3. Notice given, the 1st respondent has entered
appearance. Though notice was served on the 2nd respondent,
he has not appeared. I heard the learned counsel for the
petitioner and also the learned counsel for the 1st respondent.
From the submissions made and taking note of the facts and
circumstances presented, I find Ext.P5 order passed by the
learned Munsiff declining the request made by the plaintiff to
identify B schedule property, which had been disputed by the
2nd defendant, by deputing an Advocate Commissioner to
measure out that property and prepare a report and plan with
the assistance of a surveyor, is incorrect. The counsel for the
petitioners had handed over to me copy of the previous report
filed by the Advocate Commissioner in the suit. Though some
particulars as to the width and length of the pathway are
given in the previous report to grant a decree of perpetual
prohibitory injunction as sought for, needless to point out,
plaintiff has to establish the identity of the B schedule
property with precision, and so much so, that report is hardly
WPC.32493/09 4
sufficient for such identification. Ext.P5 is set aside directing
the learned Munsiff to consider Ext.P3 application afresh and
dispose it in accordance with law. Writ petition is closed with
the above directions.
S.S.SATHEESACHANDRAN
JUDGE
prp