IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WP(C).No. 27564 of 2003(F) -------------------------- PETITIONER(S): --------------- K. MADHAVAN NAIR, S/O. KUNHIRAMAN NAMBIAR, AGED 60 YEARS, JYOTHI NIVAS, NADUVALLOOR AMSOM DESOM, KOZHIKODE. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): --------------- 1. MURAYOTHUMMAL RAMAN, S/O. LATE RAYARAN. 2. KALAM KOTTAKKAL SASI, S/O. GOPALAN. 3. KALAM KOTTAKKAL KANDAN, S/O. RAMAN. 4. KALAM KOTTAKKAL KELAN, S/O. RAMAN, ALL ARE RESIDING AT NADUVALLOOR AMSOM AND DESOM OF KOZHIKODE TALUK. ADV. SRI.MANJERI SUNDERRAJ FOR R2 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.27564/03 APPPENDIX PETITIONER'S EXHIBITS:- P1: True copy of the commission reprot filed by Adv. Commissioner in O.S.No. 321/99 Munsiff Court No.I, Kozhikode, dated 17-6-1999 P2: True copy of the 2nd report filed by Adv. Commissioner in O.S.No.321/99 Munsiff Court -I, Kozhikode, dt. 3-10-2002. P2(a): True copy of the plan submitted by do. do. P3: True copy of I.A.NO.5136/02 in O.S.No.321/99 Munsiff Court-I, Kozhikode. P4: True copy of the order in I.A No.5136/2002 in O.S.No.321/99 on the file of the Court of the Munsiff-I, Kozhikode dt. 7-4-2003. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 27564 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 13th day of October, 2009 JUDGMENT This writ petition filed by the plaintiff in O.S.No. 321 of 1999 on the file of the Munsiff's Court-I, Kozhikode challenging Ext.P4 order dismissing I.A.No.5136 of 2002. 2. The petitioner/plaintiff filed O.S.No.321 of 1999 before the Munsiff's Court-I, Kozhikode for a permanent injunction in respect of 6.20 acres of land obtained by him as per the final decree in O.S.No.16 of 1956 on the file of the Sub Court, Kozhikode. Along with the said suit a commission was taken out for identifying the plaint schedule property. The Commissioner filed his report Ext.P1 on 17-6-1999. The respondents/defendants filed I.A. 2939 of 1999 to remit the report, which was allowed by the lower court. The Commissioner visited the property on September 21, 2002, on which date the petitioner/plaintiff was not able to present due to some function in his house. The Commissioner without completing the inspection submitted his report based on the documents produced by the respondents/defendants. Thereafter, the petitioner/plaintiff filed I.A. 5136 of 2002 for remitting the commission report. By Ext.P4 order the learned Munsiff dismissed that petition. The plaintiff challenges the said order in this writ petition. WPC 27564/03 2 3. Heard the counsel for the petitioner. Though several adjournments were granted, counsel for the respondent was absent. 4. It is seen from Ext.P2 and P2(a) Commissioner's plan and report dated October 3, 2002 that the Commissioner has prepared sketch on the basis of the documents produced by the respondents/defendants. The specific case of the petitioner is that it is not the plaint schedule property. Considering the facts and circumstances of the case, I feel that the court below should have remitted P2 and P2(a) to the same Commissioner to file a fresh plan and report on the basis of the documents produced by the petitioner/plaintiff. 4. Under these circumstances, I allow the writ petition. Ext.P4 order of the Munsiff dismissing the I.A. No. 5136 of 2002 dated April 7, 2003 is hereby set aside. The court below is directed to remit the Commissioner's report Exts.P2 and plan P2(a) to the very same Commissioner, calling for fresh plan and report on the basis of the documents produced by the petitioner/plaintiff. P.Q. BARKATH ALI, JUDGE mn WPC 27564/03 3