IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23580 of 2009(O)
1. VENKITACHALAPATHY,
... Petitioner
Vs
1. SEETHUMADHAVAN,
... Respondent
For Petitioner :SMT.P.K.RADHIKA
For Respondent :SRI.SAJAN VARGHEESE K.
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :13/10/2010
O R D E R
HARUN-UL-RASHID,J.
-------------------------------
W.P.(C). NO.23580 OF 2009
-------------------------------
DATED THIS THE 13TH DAY OF OCTOBER, 2010
JUDGMENT
Defendant in O.S.No.185/2005 on the file of the
Principal Munsiff’s Court, Palakkad is the petitioner. The prayer in
the writ petition is for setting aside Ext.P4 order passed by the
Principal Munsiff, Palakkad in I.A.No.3473/2008 in
O.S.No.185/2005, I.A.No.3473/2008 was filed by the defendant
in the suit to set aside the commission report and plan.
2. The suit was filed for permanent prohibitory injuction
restraining the defendant from trespassing into the plaint B
schedule property and from laying pipeline through the same.
Ext.P1 is the report and plan. Ext.P2 is the objection filed by the
defendant to the commission report. Ext.P3 is a petition seeking
permission to cross-examine the Advocate Commissioner. In
Ext.P4 order the court observed that the Advocate Commissioner
identified the property with prior notice to the parties and with the
-2-
WP(C).No.23580/09
assistance of a private surveyor and that the report and plan is self-
explanatory. The court also observed that though the Advocate
Commissioner was examined as PW-2, what exactly is the short
comings to the report and plan are not substantiated and therefore
an application of this nature cannot be allowed as a matter of
course. The court also held that the petitioner is not vigilant in
conducting the case and that a person who remain in slumber
cannot expect any relief from the court. On the basis of the said
reasoning the court by Ext.P4 order dismissed I.A.No.3473/2008
filed for setting aside the Commission report and plan. The
petitioner filed I.A.No.14110/2010 on 7th October, 2010, in which it
is stated that the court granted permission to cross-examine the
Commissioner on two occasions; but unfortunately the counsel
appearing for the petitioner failed to cross-examine the
Commissioner, since his mother was hospitalised. The
inconvenience of the lawyer was represented before the court
below; but the court below refused to grant another adjournment to
-3-
WP(C).No.23580/09
cross-examine the Commissioner. It is also stated in the affidavit
that 20 families are depending on the water supplied through the
pipeline which is in dispute. Therefore, it is requested that the
matter may be remitted granting a chance to the petitioner to cross-
examine the Advocate Commissioner who submitted the
commission report and plan. Though the court below granted
opportunities, the petitioner did not avail of the same. Now it is
stated that his counsel could not cross-examine the Commissioner,
due to some personal inconvenience. The reason stated is that
mother was hospitalised during the relevant time. The suit is of the
year 2005. In the facts and circumstances stated above, I think that
an opportunity can be given to the petitioner to substantiate his
objections to the commission report and plan and also to
substantiate his prayer for setting aside the said report and plan.
The case was not listed for trial till today. The court below shall
list the case for trial and during the course of examination of the
witnesses, an opportunity shall be given to the petitioner to cross-
-4-
WP(C).No.23580/09
examine the Advocate Commissioner to substantiate his
contentions.
Writ Petition is disposed of with the above observation.
HARUN-UL-RASHID,
Judge.
kcv.
-5-
WP(C).No.23580/09