IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 26TH JUNE 2007 / 5TH ASHADHA 1929 WP(C).No. 25241 of 2004(E) -------------------------- OS.304/1993 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER: -------------------- CHANDRASENAN NAIR, LALITHA MANDIRAM, CHITTOOR KARA, MANAKKADU, THODUPUZHA, IDUKKI DISTRICT. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SMT.SANJANA R.NAIR SMT.M.R.MINI SRI.RAHUL VARMA SRI.JAYKAR.K.S. SRI.V.S.ROBIN RESPONDENT: ----------------------- RAMACHANDRAN NAIR, VRINDAVAN, CHITTOOR KARA, MANAKKADU, THODUPUZHA, IDUKKI DISTRICT. BY ADV. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.25241/2004 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A.1691/02 IN O.S.NO.304/93 DTD. 16/09/02. EXT.P2: COPY OF THE REPORT ALONG WITH THE SURVEY PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER DTD. 20/06/2004. EXT.P3: COPY OF THE I.A.1088/04 IN O.S.304/93 DTD. 9/07/04 FILED BY THE PETITIONER. EXT.P4: COPY OF THE ORDER IN I.A.1088/04 IN O.S.304/93 DTD. 5/08/04 PASSED BY THE MUNSIFF'S COURT, THODUPUZHA. /TRUE COPY/ Kss PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25241 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 26th June, 2007 JUDGMENT Ext.P4 order passed by the learned Munsiff dismissing an application for remittance of a commission report and plan is under challenger in this Writ Petition instituted under Article 227 of the Constitution by the plaintiff. The suit as amended is one for declaration of easement rights of the plaintiff on the B schedule pathway by grant and for consequential injunction. The Commissioner was deputed for measuring the property and for submission of a report and plan. Very serious objections were filed by the petitioner regarding the manner in which the pathway has been located and also regarding the length and width of the pathway in question. It was on the basis of those objections that the petitioner filed the I.A. for remitting the commissioner's report and plan to the Commissioner. The learned Munsiff would hold that in the nature of the suit the dispute regarding the measurements of the pathway is not that much relevant. The learned Munsiff has observed that there are mistakes in the report and that the same can be rectified by adducing proper evidence. 2. Heard Mr.Unnikrishnan V.Alapatt, learned counsel for the W.P.C.No.25241/04 - 2 - petitioner and the counsel for the respondent. 3. Assailing Ext.P4 learned counsel for the petitioner would submit that allowing the Commissioner's report and plan to remain as they are will be fatal to the petitioner's case. Even the length of the pathway passing through the properties of rival parties has been wrongly stated. 4. Counsel for the respondent would however support Ext.P4 on the reasons stated in Ext.P4 itself. 5. Having considered the rival submissions, I am of the view that it will not be proper to set aside Ext.P4 in the visitorial jurisdiction of this court under Article 227 of the Constitution which is exceptional and is expected to be to be invoked only when the order of the court below is so wholly unreasonable that the same can even be branded as a perverse one. The apprehensions of the petitioner- plaintiff in my opinion has been taken care of by the learned Munsiff himself who has observed that if there are mistakes in the report the same can be rectified by adducing proper evidence. Under these circumstances, I decline to interfere with Ext.P4 under Article 227 of the Constitution. However, there will be a direction to the learned Munsiff to allow the petitioner to cross-examine the Advocate W.P.C.No.25241/04 - 3 - Commissioner when the suit is posted for trial and also to adduce whatever other evidence he is having in support of the objections to the Commissioner's report. When the trial of the suit is over the parties will be heard by the learned Munsiff on the question of acceptability of the Commissioner's report and that question will be decided by the learned Munsiff even before final judgment is rendered. The Writ Petition is disposed of as above. No costs. srd PIUS C.KURIAKOSE, JUDGE