IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 2045 of 2009(R) ------------------------------------------ IA.29/2009 IN OS.204/2006 of M.C., PARAPPANANGADI .................... PETITIONER: IBRAHIM, S/O.MOHAMMED, KALATHINGAL, KLARI AMSOM, TIRURANGADI TALUK, MALAPPURAM DIST. BY ADV. SRI.K.P.SUDHEER SMT.P.JAYALAKSHMI RESPONDENTS: 1. ALAVI HAJI, S/O.KUNHEETHU, KUNNAKADAN, EDARIKKODE POST, CHANGUVETTY, MALAPPURAM DIST. 2. MOOSAKUTTY, S/O.ATHU, KADAKOTT, EDARIKKODE POST,CHANGUVETTY, MALAPPURAM DIST. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.2045 of 2009 R -------------------------- JUDGMENT Petitioner is the first defendant in O.S.No. 204/06 on the file of the Munsiff's Court, Parappanangadi. He assails in this writ petition Exhibit P7 order passed by the court below on Exhibit P3 application filed by him for remitting the commission report for submission of a fresh report and plan. 2. Exhibit P3 application was filed on 1.1.2009 seeking for an order remitting the commission report filed by the Commissioner on 30.10.2008. Counsel for the petitioner submits that apart from filing Exhibit P3 application along with the affidavit therewith on 1.1.2009, no separate objection had been filed to the commission report. It is submitted that the suit stood posted for trial in the list on 9.1.2009 and that it was adjourned to 15.1.2009 and then to 24.1.2009. The court below, in Exhibit P7 order, observed that it has perused the affidavit accompanying Exhibit P3 application and found that the reason alleged for WPC 2045/09 2 remitting the commission report is not satisfactory; that the suit is a targetted one and is included in the list; that the petitioner had been given two chances for filing objection to the commission report; that no objection had been raised when the draft list was published; that the fair list was finalised and published sufficiently early and it was only on 1.1.2009 that the petitioner has moved Exhibit P3 application to remit the commission report back to the Commissioner even without moving an application to remove the suit from the list and that the petitioner is resorting to delaying tactics. It was in the above circumstances that the court below dismissed Exhibit P3 application vide Exhibit P7 order. 3. I have heard the submissions of the counsel for the petitioner. 4. I agree with the observation of the court below that the petitioner's filing Exhibit P3 application when the suit is posted for trial in the list on 9.1.2009 is nothing but an attempt on his part to protract the trial and disposal of the case. WPC 2045/09 3 In the result, I refuse to interfere with the order of the court below. However, it is made clear that if it is found by the court below that appropriate decision in the suit cannot be taken without a proper commission report, the court below shall, before disposing of the suit, afford an opportunity to have the commission report remitted and to obtain a proper commission report. On the other hand, if the court is of the view that appropriate and just decision can be arrived at with the materials furnished, the court below shall be at liberty to dispose of the suit on merits. This writ petition is disposed of with the above directions. 20th January, 2009 (K.P.Balachandran, Judge) tkv