IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 OP(C).No. 4184 of 2011(O) ----------------------------------- OS.290/1991 of M.C.,PARAPPANANGADI .......................................................................... PETITIONERS : ---------------------- VEERAN, S/O. PAZHERI MOHAMMEDKUTTY, PERUVALLUR AMSOM, KERNELLUR DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENTS : ------------------------ 1. ITHACHUMMA, D/O. PAYERI MOHAMMED KUTTY, FEROKE AMSOM, NELLUR DESOM, KOZHIKODE TALUK, PIN - 673 631. 2. NABEESA, W/O. KUNCHOKKU, FEROKE AMSOM, NELLUR DESOM, KOZHIKODE TALUK, PIN - 673 631. 3. HAMEED, S/O. PAZHERI MOHAMMEDKUTTY, PERUVALLUR AMSOM, KERNELLUR DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 673 638. 4. IBRAHIM, S/O. PAZHERI MOHAMMEDKUTTY, PERUVALLUR AMSOM, KERNELLUR DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 673 638. 5. KHADEEJA, D/O. PAZHERI MOHAMMEDKUTTY, KONDOTTY AMSOM, KOLATTUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 67 638. RKM -2- OP(C).No. 4184 of 2011(O) 6. BICHIPATHUMMA, D/O. PAZHERI MOHAMMEDKUTTY, PALLIKKAL AMSOM DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 673 653. 7. KATHIYUMMA, D/O. PAZHERI MOHAMMEDKUTTY, VAZHAKKAD AMSOM, NELLARA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 673 640. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM -3- OP(C).No. 4184 of 2011(O) APPENDIX PETITIONER'S EXHIBITS : P1 : COPY OF THE ORDER DATED 15/06/2010 IN IA. NO. 1032/2009 IN IA. 1158/2005 IN O.S NO. 290/1991 PASSED BY THE MUNSIFF'S COURFT, PARAPPANANGADI. P2 : COPY OF THE I.A. NO. 1363/2010 DATED 06/07/2009 IN IA. 1158/2005 IN O.S NO. 290/1991 PASSED BY THE MUNSIFF'S COURFT, PARAPPANANGADI. P3 : COPY OF THE INTERIM REPORT DATED 06/09/2010 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A. NO. 1363/2010 IN I.A NO. 1158/2005 IN O.S NO. 290/1991 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI. P4 : COPY OF THE AFIDAVIT DATED NIL IN IA. NO. 1701/2010 IN IA. 1363/2010 IN I.A 1158/2005 IN O.S NO. 290/1991 ON THE FILE OF THE MUNSIFF'S COURFT, PARAPPANANGADI. P5 : COPY OF THE COUNTER STATEMENT DATED 06/10/2010 IN EXT.P4 BY THE PETITIONER. P6 : COPY OF THE MEMO DATED 22/08/2010 ISSUED BY THE ADVOCATE COMMISSIONER IN IA. NO. 1362/2010 IN I.A. 1158/2005 IN O.S NO. 290/1991 ON THE FILE OF THE MUNSIFF'S COURFT, PARAPPANANGADI. P7 : COPY OF THE MEMO DATED 27/07/2011 SUBMITED BY THE ADVOCATE COMMISSIONER IN IA. NO. 1363/2010 IN I.A. 1158/2005 IN O.S NO. 290/1991 ON THE FILE OF THE MUNSIFF'S COURFT, PARAPPANANGADI. P8 : COPY OF THE AFFIDAVIT DATED 04/08/2011 IN IA. NO. 1551/2011 IN IA. 1363/2010 IN I.A 1158/2005 IN O.S NO. 290/1991 ON THE FILE OF THE MUNSIFF'S COURFT, PARAPPANANGADI. P9 : COPY OF THE COUNTER STATEMENT DATED 11/08/2011FILED BY THE PETITIONER TO EXHIBIT. P7 P10 : COPY OF THE WITNESS LIST DATED 27/10/2011 SUBMITTED BY THE PETITIONER IN I.A. NO.1551/2011 P11 : COPY OF THE DOCKET ORDER DATED 28/11/2011 IN I.A. NO. 1551/2011 IN I.A. 1363/2010 IN I.A. NO. 1158/2005 IN O.S NO. 290/1991 PASSED BY THE MUNSIFF'S COURFT, PARAPPANANGADI. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE RKM THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4184 of 2011 --------------------------------------- Dated this 20th day of December, 2011 JUDGMENT First defendant in O.S.No.290 of 1991 of the Court of learned Munsiff, Parappanangadi challenges the order dated 28.11.2011 on Ext.P8, application preferred by respondents 1 and 2. 2. A preliminary decree for partition was passed in the suit. Thereafter plaintiff filed I.A.No.1158 of 2005 for passing a final decree. During pendency of that application, first plaintiff died on 11.02.2006 and his right devolved on the second plaintiff. The second plaintiff assigned her right in favour of the second respondent. Thereafter a supplementary preliminary decree was passed on I.A.No.1032 of 2009. Though the Advocate Commissioner had inspected the property before passing a supplementary preliminary decree, there was a request that the Advocate Commissioner should again inspect the property in view of supplementary preliminary decree. That application (Ext.P2) was allowed. The same Commissioner was deputed for the work. Commissioner submitted an interim report that since some of the parties obstructed execution of the work, police assistance and O.P(C).No.4184 of 2011 -: 2 :- service of an Engineer is required to value the property. Respondents 1 and 2 are said to have filed Ext.P4, application to set aside Ext.P3, interim report. Petitioner filed Ext.P5, objection to that interim report. Learned Munsiff dismissed Ext.P4, application preferred by respondents 1 and 2. Commissioner then filed Exts.P6 and P7, memos again stating that co-operation of parties is required to carry out the work. 3. Ext.P8, application is filed to consider veracity of Exts.P6 and P7, memos and appoint another Advocate Commissioner to carry out the work. It is submitted that learned Munsiff posted Ext.P8, application for evidence but all of a sudden on 28.11.2011, learned Munsiff passed the impugned order allowing Ext.P8, application. 4. It is contended by learned counsel that learned Munsiff dismissed Ext.P4, application and has later chosen to allow Ext.P8, application without any evidence on record. It is pointed out that no notice was given to the Advocate Commissioner before he was removed. 5. By the order dated 28.11.2011 what is done by the learned Munsiff is to appoint another Advocate Commissioner in view of allegations made in Ext.P8, application. It is seen from O.P(C).No.4184 of 2011 -: 3 :- the order that learned Munsiff was concerned about the delay in the proceeding on account of various objections being preferred. 6. It is not as if petitioner is prejudiced in any manner on account of the Advocate Commissioner being changed. It is not shown that any prejudice, not to say any material prejudice is caused to the petitioner. In that view of the matter, assuming that there was some error in the procedure adopted by the learned Munsiff in passing the impugned order, such errors are not required to be interfered under Art.227 of the Constitution having regard to the fact that as aforesaid, petitioner is not prejudiced by the impugned order. In that view of the matter I do not find reason to interfere at the instance of petitioner. Original Petition is dismissed. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-