IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 19704 of 2007(U) -------------------------- PETITIONER(S): --------------- ASSAN, S/O.KOYAMU,ADATTIL, KOTTAKKAL AMSOM DESOM,TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- 1. ALAVI, S/O.KOYAMU, ADATTIL, KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. 2. KADHEEJA,W/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. 3. SHAFI, S/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. 4. ABDUL LATHEEF,S/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. 5. ABUSUFIYAN, S/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. 6. ABDUL JALEEL, S/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. 7. NAZAR, S/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. WPC.NO.19704/07 8. NAFEESA, D/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. 9. JAMEELA,D/O.ALAVIKUTTY HAJI, AMARIYIL,KOTTAKKAL AMSOM DESOM, TIRUR TALUK,MALAPPURAM DISTRICT. ADV. SRI.MOHAN PULIKKAL FOR R1-3,5,7-9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.19704 OF 2007 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.79/2001 ON THE FILE OF THE SUBORDINATE JUDGE, TIRUR DATED 20-8-01 EXT.P2 TRUE COPY OF THE REPORT AND ROUGH SKETCH FILED BY THE COMMISSIONER. EXT.P3 TRUE COPY OF I.A.NO.1626/06 IN O.S.NO.79/2001, SUBORDINATE JUDGE, TIRUR DATED 26-9-06 EXT.P4 TRUE COPY OF THE ORDER IN I.A.NO.1626/06 IN O.S.NO.79/01, SUBORDINATE JUDGE OF TIRUR DATED 26-5-07 /True Copy/ PIUS.C.KURIAKOSE J. ------------------------ W.P.(C)No.19704 of 2007 ------------------------ Dated this the 29th day of January, 2009 JUDGMENT The writ petition is remaining defective on the reason that respondents 4 and 6 have not been served with notice. But, it is seen that respondents 4 and 6 are the children of the second respondent and the siblings of respondents 3, 5,7,8 and 9 and that all of them were pursuing the very same defence through the very same counsel. In the above circumstances, service of notice on respondents 3,5,7,8 & 9 can be treated as service of notice on respondents 4 and 6 also. Hence, the writ petition need not be treated as defective. 2. In this writ petition under Article 227 of the Constitution, the petitioner challenges Ext.P4 order passed by the learned Subordinate Judge on an application for remittance of the commissioner's report. The petitioner is the plaintiff and the suit was for recovery of possession on the strength of title and for consequential injunction. As noticed by the learned Subordinate Judge, though the suit was for recovery based on the plaintiff's WPC.No.NO.19704/2007 2 title, the plaintiff did not file even an application for issuance of commission despite the contest by the respondents defendants to the title claimed by the plaintiff. But, the defendants respondents filed the commission application and the commissioner filed his report and plan. The petitioner did not file any objection to the commission report or the plan. But, when the suit was listed for trial, the petitioner filed I.A. No.1616/2005 for remittance of the plan and the report. Interestingly, the ground in that I.A. was that the advocate commissioner had not conducted measurement of the plaint schedule property on the basis of the work memo submitted by the respondents defendants and not on the basis of any objections of the petitioner plaintiff to the commission report. The suit was dismissed for default and along with the suit I.A. No.1616/2005 was also dismissed. Though the suit was later restored to file on the application filed by the petitioner, the I.A .No.1616/2005 was never restored. Thus, the order dismissing the I.A.No.1616/2005 has attained finality. The present I.A. No.1626/2006 was filed by the petitioner when the suit was again listed for trial . The learned Sub Judge under the impugned WPC.No.NO.19704/2007 3 order Ext.P4 has dismissed the present I.A. not only on the reason that the same is not maintainable in view of the finality attained by the order dismissing I.A. No.1616/2005, but also on other reasons. 3. The contours of this court's jurisdiction under Article 227 are well defined. This court does not interfere with every order passed by the courts below in this jurisdiction. The enquiry in this jurisdiction is whether the impugned order is per se, illegal in the sense that it offends provisions of law statutory or settled or whether the order is of such a nature as to be branded as a perverse order in the sense that such orders will not be written by anybody having reasonable training in law. Having guaged Ext.P4 by the para meters which are applicable for exercise of jurisdiction under Article 227, I am not prepared to say that Ext.P4 is perverse or an order which warrants invocation of the supervisory jurisdiction under Article 227. Challenge against Ext.P4 fails and the writ petition will stand dismissed. However, it is made clear that if after the trial decision in the suit comes to be against the writ petitioner, this judgment will not stand in the way of the writ petitioner urging WPC.No.NO.19704/2007 4 the grounds raised by him in this writ petition, through the appeal, which he may prefer against the judgment and decree. PIUS.C.KURIAKOSE,JUDGE dpk