IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 33645 of 2009(O) -------------------------- AGAINST THE ORDER DATED 10/11/2009 IN IA.3023/2009 IN OS.85/2008 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER: --------------- MARY VARGHESE, AGED 48 YEARS, W/O.VARGHESE, KAITHAMANATHARAYIL HOUSE, VADASSERY KARA, KOTTAPPADY VILLAGE. BY ADV. MR.PEEYUS A.KOTTAM RESPONDENTS: --------------- 1. MANI, AGED ABOUT 47 YEARS, S/O.CHACKO, MANGALATH HOUSE, VADASSERY KARA, KOTTAPPADY VILLAGE. 2. LISSY, AGED ABOUT 44 YEARS, W/O.MANI, MANGALATH HOUSE, VADASSERY KARA, KOTTAPPADY VILLAGE. 3. PATHROSE, S/O.MATHAI, KAITHAMANATHARAYIL HOUSE, VADASSERY KARA, KOTTAPPADY VILLAGE. 4. VARGHESE, S/O.MATHAI, MANGALATH HOUSE, VADASSERY KARA, KOTTAPPADY VILLAGE. 5. SAJAN, S/O.VARGHESE, MANGALATH HOUSE, VADASSERY KARA, KOTTAPPADY VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33645 of 2009 - O --------------------------------- Dated this the 25th day of November, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To call for the entire records leading to issue of Ext.P3 order and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction and allow the prayer therein and thereby advance the case and direct the learned Munsiff to consider I.A.No.14 of 2009 filed by petitioner for setting aside the commission report and plan as per order in I.A.No.738/2008 before commencing trial in the suit.” 2. Petitioner is the plaintiff in O.S.No.85 of 2008 on the file of the Munsiff Court, Muvattupuzha. Suit is one for fixation of boundary and for perpetual prohibitory injunction. Suit claim is resisted by the defendants who are the respondents in the writ petition. At the instance of the plaintiff, an advocate commissioner conducted a local inspection, measured out the property and prepared a report and plan with the assistance of a surveyor. Raising his objections, petitioner/plaintiff applied for a pretrial enquiry on the merit of the commission report and plan. W.P.(C).No.33645 of 2009 - O 2 Learned Munsiff declined the request vide Ext.P3 order holding that the correctness of the commission report and plan can be considered at the trial of the case. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and it is dispensed with. 4. Relying on Bhaskaran v. Kamalakshi and Others (2008(4) KHC 203) learned counsel for the petitioner contended that Ext.P3 order by the learned Munsiff holding that an enquiry on the merit of the commission report and plan in respect of the objections raised by the petitioner/plaintiff can be held at the trial of the suit is not proper and correct. Section 75 and Order XXVI of the Code of Civil Procedure do not lay down any procedure as to how and at what stage the enquiry on the merit of the commission report and plan is to be conducted by the court. No W.P.(C).No.33645 of 2009 - O 3 procedure is laid down that a pretrial enquiry over the merit of the report and plan has to be conducted before the adjudication of the issues involved in the suit is proceeded with in trial of the case. After all commission report is only a piece of evidence among other evidence let in the case and for proper appreciation of the report and plan it may become necessary for the court to look into other material evidence to be tendered in the case. So, it cannot be held that in all cases, if any objection is raised to the commission report and plan, pretrial enquiry on the merit of the commission report and plan is a must before the trial commence. The decision relied by the counsel does not lay down the proposition that in all cases pretrial enquiry on the merit of the commission report and plan is a must and it was rendered on the facts presented in that case. I do not find any impropriety or illegality in Ext.P3 order passed by the learned Munsiff relegating enquiry on the merit of the commission report and plan to trial. Needless to point out, petitioner/plaintiff shall be extended an opportunity to substantiate his objections to the commission report and plan by examining the commissioner and also the W.P.(C).No.33645 of 2009 - O 4 surveyor, if steps are taken, and on the basis of the evidence let in, the court has to pass appropriate orders on the merit of the report and plan. Subject to the above observations, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-