IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 526 of 2009(K) --------------------------------- OS.1636/2005 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER: ------------------ GUNALAN, S/O.APPUKUTTAN KARTHA, IRIKKAYIL, KIZHAKKUMMURI VILLAGE AND DESOM, THRISSUR TALUK. BY ADV. SRI.M.UNNIKRISHNA MENON RESPONDENT(S): PLAINTIFFS ------------------------------------------ 1. KALYANI BHASKARAN,W/O ERANEZHATH BHASKARAN, KIZHAKKUMMURI VILLAGE AND DESOM, THRISSUR TALUK. 2. VIJAYA PRAKASAN, W/O.KULANGARA VEETTIL PRAKASAN, KIZHAKKUMURI VILLAGE AND DESOM, THRISSUR TALUK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 526/2009-K APPENDIX PETITIONER'S EXHIBITS : EXT.P1 COPY OF THE COMMISSION REPORT IN IA.4241/05 IN OS.1636/05 OF MUNSIFF'S COURT, THRISSUR. EXT.P2 COPY OF IA.4711/2005 IN OS.1636/2005 OF MUNSIFF COURT, THRISSUR. EXT.P3 COPY OF THE COMMISSION REPORT IN IA.4711/2005 IN OS.1636/2005 OF MUNSIFF COURT, THRISSUR. EXT.P4 COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY DEFENDANT. EXT.P5 COPY OF THE IA.7053/2007 FILED BY THE PLAINTIFFS. EXT.P6 COPY OF THE OBJECTION FILED BY PETITIONER TO EXT.P5 PETITION. EXT.P7 COPY OF THE WORK MEMO SUBMITTED BY THE PETITIONER. EXT.P8 COPY OF THE PETITION IN IA.5821/2008 FILED BY THE PETITIONER. EXT.P9 COPY OF THE COMMISSION REPORT IN IA.7053/2007. EXT.P10 COPY OF THE OBJECTION FILED BY PETITIONER TO EXT.P9 REPORT. EXT.P11 COPY OF THE IA.7198/08 FILED BY THE PETITIONER. EXT.P12 COPY OF THE ORDER IN IA.7198/08 IN IA.7053/2007 IN OS.1636/05 OF MUNSIFF COURT, THRISSUR. EXT.P13 COPY OF THE IA.9351/2008 FILED BY PETITIONER. EXT.P14 COPY OF THE OBJECTION FILED BY RESPONDENTS TO EXT.P3 PETITION. EXT.P15 COPY OF THE ORDER IN IA.9351/2008 IN OS.1636/2005 OF MUNSIFF COURT, THRISSUR. EXT.P16 COPY OF THE ROUGH SKETCH PREPARED BY PETITIONER. EXT.P17 COPY OF THE PHOTOGRAPHS SHOWING THE EXACT LIE OF THE WAY. RESPONDENTS' EXHIBITS : NIL / TRUE COPY / PA TO JUDGE. dkr S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 526 OF 2009 K ```````````````````````````````````````````````````` Dated this the 2nd day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: (i) set aside the orders of the Munsiff's court, Thrissur in IA.No.7198/08 in OS.No.1636/05 dated 15.10.2008 dismissing the petition for setting aside the Advocate Commissioner's report and order in IA.No.9351/08 in OS.No.1636/05 dated 25.1.08 dismissing the petition for appointing a fresh Advocate Commissioner and to allow these petitions as prayed for. (ii) issue direction to Munsiff's Court, Thrissur to appoint a fresh Advocate Commissioner as prayed for IA.No.9351/08 to and further direct the Commissioner to complete the formalities within a time frame as fixed by this Hon'ble court. (iii) issue an interim order of stay of further proceedings in OS.No.1636/05 on the file of the Munsiff Court, Thrissur till the disposal of this writ petition. 2. Petitioner is the defendant in O.S.No.1636/05 on the WPC.526/09 : 2 : file of the Munsiff Court, Thrissur. Suit is one for injunction and it is still pending for adjudication. The respondents in the petition are the plaintiffs. The grievance canvassed by the petitioner for the reliefs aforementioned is that his objection to the Commissioner's report and plan have not been properly appreciated by the learned Munsiff, with the result the objections were overruled and the further request made for appointment of a fresh Commission turned down. Ext.P12 is the copy of the order by which the learned Munsiff negatived the request of the petitioner for setting aside the Commissioner's report and plan. Ext.P15 is the copy of the order passed by the learned Munsiff turning down the request of the petitioner for appointment of a second Commission. 3. I heard the learned counsel for the petitioner. Inviting my attention to the objections raised by the petitioner to the Commissioner's report and plan and Exts.P12 and P15 orders passed by the court below, the learned counsel submitted that both the orders are erroneous and unsustainable under law. I am unable to agree with the submissions made by the counsel. So far WPC.526/09 : 3 : as Ext.P15 order is concerned, the challenge raised by the counsel must be rejected outright as a second Commission cannot be appointed without setting aside the previous Commissioner's report and plan. That position is well settled by the decision rendered by a Division Bench of this High Court in Swami Premananda Bharathi Vs. Swami Yogananda Bharathi [1985 KLT 144]. Then, with respect to the challenge raised as against Ext.P12 order, it has to be pointed out this court in exercise of its visitorial jurisdiction under Article 227 of the Constitution of India cannot determine the merit of a report and plan prepared by the Commissioner in a suit or a proceeding. Whatever be the order passed by the court turning down the objection raised by a party to the proceeding or suit as against the report and plan prepared by the Commissioner, he has a right to challenge the propriety and correctness of the orders of that court, if need be, at the appropriate forum in case an adverse decision is rendered against him in the suit or proceeding. This court has held that the questions connected with the merit of the Commissioner report cannot be gone into in exercise of the revisional jurisdiction under WPC.526/09 : 4 : section 115 of the CPC. The powers under Article 227 of the Constitution of India is much more circumscribed and while exercising such powers, it is not open to the court to determine the merit of a Commissioner's report and plan on which final orders are yet to be passed by the court. The writ petition is devoid of any merit and it is dismissed. sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge