IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WP(C).No. 834 of 2010(O) ------------------------ OS.49/2006 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): --------------- ABDUL LATHEEF, S/O. MUHAMMED @KUNHAPPU NARIKKODAN HOUSE, KARIPPOL.P.O., ATHAVANAD AMSOM DESOM, TIRUR TALUK. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): --------------- 1. P.V.REGHUNATH, S/O. UPPILAPATTA PUTHEN VEETTIL RAMACHANDRAN NAIR, MOORKKANAD AMSOM, KULATHOOR DESOM, PERINTHALMANNA TALUK. 2. MANOJ, S/O. UPPILAPATTA PUTHEN VEETTIL RAMACHANDRAN NAIR, MOORKKAND AMSOM, KULATHOOR DESOM, PERINTHALMANNA TALUK. 3. SANTHA, W/O. UPPILAPATTA PUTHEN VEETTIL RAMACHAMNDRAN NAIR, MOORKKANAD AMSOM, KULATHOOR DESOM, PERINTHALMANNA TALUK. 4. KIZHAKKE CHALIL CHIRAYIL MUHAMMED, S/O. KOYA HAJI, KALPAKANCHERRY AMSOM, THOZHUVANNOOR DESOM, TIRUR TALUK. 5. KUMMALIL THAZHATHETHIL ENIKKUTTY, S/O. SAIDALAVI, KURUMBATHOOR AMSOM, PUNNATHALA DESOM, TIRUR TALUK. 6. P.V.SHEEJA, W/O. UP.HARIDAS, KOLATHOOR AMSOM AND DESOM,TIRUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.834 OF 2010 (O) ----------------------------------- Dated this the 11th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records leading to Ext.P7 order and to quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. ii. to issue a direction to the court below to remit Ext.P4 report and plan and to issue a fresh commission to identify the property. 2. Petitioner is the plaintiff in O.S.No.49 of 2006 on the file of the Munsiff Court, Tirur. Suit is one for perpetual prohibitory injunction and the respondents are the defendants. Challenge raised in the writ petition is against Ext.P7 order passed by the learned Munsiff declining the request of the petitioner/plaintiff to remit a commission report collected in WPC.834/10 2 the suit. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the exhibits tendered in the writ petition, I find no notice to the respondents is necessary, and it is dispensed with. The commission report is after all a piece of evidence among other materials tendered in the case for an adjudication of the issues arising in trial on the pleadings of the parties. This Court in its writ jurisdiction cannot be expected to sit in judgment on the merit of a commission report collected primarily to assist the court to resolve the disputed questions emerging for consideration for a fair and proper disposal of the suit or proceedings. Perusing Ext.P7 order, it is seen, the court below has made some observations with reference to the report filed by the commissioner which are likely to cause prejudice to the petitioner/plaintiff in the trial of the suit. I direct the court below to dispose the suit untramelled by any of the observations made in Ext.P7 order. Further more, WPC.834/10 3 irrespective of the observations made in Ext.P7 order, the petitioner/plaintiff shall be extended an opportunity to establish his objections to the commission report by examining the commissioner and also the surveyor, provided, steps are taken for such examination. If the commissioner and surveyor are examined on the basis of the materials tendered in the case, if the court finds that the report is liable to be set aside or remitted, it has to pass appropriate orders in accordance with law. I am not expressing any view that on the examination of the commissioner and surveyor, the court has to set aside or remit the report but only stating that on the materials tendered, appropriate orders in accordance with law have to be passed in the matter. Writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp