IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 34994 of 2008(N) --------------------------------------- (OS.NO.682/2004 OF ADDL.MUNSIFF COURT, PALAKKAD) .................... PETITIONER: ------------------- MOHANAKRISHNAN, S/O. SANKARANARAYANAN, RESIDING AT PIRAYIRI AMSOM, PALAKKAD TALUK. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU. RESPONDENT: ---------------------- KARTHYAYANI AMMA, W/O. SETHUMADHAVAN NAIR, RESIDING AT PALLIPOTTA HOUSE, PIRAYIRI AMSOM, PALAKKAD TALUK. R1 BY ADV. MR. JACOB SEBASTIAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34994/2008-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE FINAL REPORT FILED BY THE ADVOCATE COMMISSIONER DTD. 13/03/07. EXT.P.2: COPY OF THE ADDL. REPORT FILED BY THE ADVOCATE COMMISSIONER DTD. 23/06/2007. EXT.P.3: COPY OF THE ORDER IN I.A. NO. 2919/2008 IN O.S. NO. 682/2004 ON THE FILE OF THE COURT OF THE MUNSIFF (ADDITIONAL) OF PALAKKAD DTD. 22/10/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.34994 of 2008 - N --------------------------------- Dated this the 20th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To call for the records leading to the issue of Ext.P3 and set aside the same. ii) To dismiss I.A.No.2919/2008 in O.S.No.682/2004 on the file of the Court of the Munsiff (Additional) of Palakkad. iii) To issue a writ in the nature of mandamus directing the court below to decide the suit on the basis of the evidence adduced”. 2. Petitioner is the defendant in O.S.No.682/2004 on the file of the Additional Munsiff Court, Palakkad. Suit is one for recovery of possession of plaint C schedule property and the respondents are the plaintiffs in the suit. After evidence was completed and case posted for arguments, on an application moved by the first plaintiff, the court remitted the report and plan prepared by an advocate commissioner holding that the proper identification of the suit property has not been made. W.P.(C).No.34994 of 2008 - N 2 Ext.P3 is the copy of that order. Propriety and correctness of that order is impeached in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. The learned counsel for the petitioner submitted that two reports have already been filed in the case and they are exhibited in evidence as Exts.P1 and P2. After filing of Ext.P1 request, pursuant to an agreement arrived by the parties that a remission is required to show the extent of the property alone, by an order dated 9.10.2007 passed by the court in I.A.No.1996/2007 to determine the extent of the land, the report and plan were remitted. Ext.P2 report was filed after such remission. However, later, after the entire evidence was recorded, on an application filed by the first plaintiff under Section 151 CPC, it is submitted, Ext.P2 report and plan were set aside. Learned counsel for the respondents contended that there was much disparity in the measurement shown in the report when compared with the earlier report prepared in a W.P.(C).No.34994 of 2008 - N 3 previous case and and noticing that Ext.P3 order was passed, and it does not call for any interference. 5. Having regard to the submissions made and taking note of the facts and circumstances presented, it is seen that the court below remitted Ext.P2 report and plan and appointed another advocate commissioner solely for the reason that there was difference in the width of a bund of a pond as stated in the present report with that of a report collected in a previous suit. I am afraid, after the entire evidence recorded and that too on the application moved under Section 151 CPC, remitting the commission report and plan without cogent and convincing reasons to do so, is not correct. The question is whether the plaintiffs have filed objections to the report at the appropriate time and if so, such objections are sustainable or not. The appointment of a new advocate commissioner without ascertaining the concurrence of the previous advocate commissioner, if at all, a remission was required which is taken serious exception to by the learned counsel for the petitioner is also not desirable. How far the earlier order dated 9.10.2007 in W.P.(C).No.34994 of 2008 - N 4 I.A.No.1996/2007 referred to by the learned counsel for the petitioner is applicable in raising challenges to the subsequent report and plan also required to be analysed. The court below is directed to advert to the above aspects and take a decision afresh whether the report and plan prepared by the advocate commissioner has to be remitted to not. Setting aside Ext.P3 order, I direct the court below to examine the matter afresh after affording reasonable opportunity to both sides, and pass appropriate orders in accordance with law. The writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-