IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 3457 of 2009(J) ------------------------------------------ OS.114/2004 of PRINCIPAL SUB COURT, ATTINGAL .................... PETITIONER: USHA, AGED 59 YEARS, D/O.SAROJINI, RESIDING AT KULATHUVILAKATH VEEDU, KADAKKAVOOR DESOM, CHIRAYINKIL TALUK. BY ADV. SRI.K.P.SREEKUMAR RESPONDENTS: 1. SUJATHAN, AGED 47 YEARS, S/O.DEVADASAN, SREE BHAVAN, NEAR OVERBRIDGE, KADAKKAVOOR P.O., CHIRAYINKIL TALUK. 2. GIRISH, AGED 35 YEARS, S/O.KRISHNAN, K.G.NIVAS, KADAKKAVOOR P.O., CHIRAYINKIL TALUK. 3. RENUKA DEVI, AGED 40 YEARS, W/O.SREEKANTAN NAIR, MELEVILAKOM, KADAKKAVOOR P.O., CHIRAYINKIL TALUK. 4. KARTHIKEYAN, AGED 40 YEARS, S/O.NATARAJAN, KULATHUVILAKATH HOUSE, NEAR OVER BRIDGE, KADAKKAVOOR VILLAGE P.O. CHIRAYINKIL TALUK. 5. UMA, W/O.SOMAN, AGED 36 YEARS, GURU MANDIRAM, VAKKOM P.O. 6. SARASWATHY, AGED 35 YEARS, D/O.USHA, VAVIL VEEDU, SANNIDHI STREET, VARKALA P.O. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No. 3457 of 2009 J -------------------------- JUDGMENT Petitioner is the first plaintiff in O.S.No. 114/04 on the file of the Sub Court, Attingal. The suit is one for a decree declaring title and possession of plaint A, B and C schedule properties in favour of the plaintiffs and for recovery of possession thereof and for other consequential reliefs. It is submitted that on the application of the petitioner, an ex parte commission was issued and the Commissioner filed a report on 9.9.2004. Thereafter, on appearance of the defendants, they filed I.A.No.1432/04 for setting aside the commission report and to have a fresh inspection conducted by the Commissioner. The commission report was remitted and he filed a supplementary report on 15.11.2004 and thereafter written statement in the suit was filed by the defendants on 13.5.2005. WPC 3457/09 2 2. According to the petitioner, plaint had to be amended in view of the report and plan submitted by the Commissioner and in view of the contentions raised by the defendants in the written statement. Accordingly, the plaint was got amended vide I.A. No.1766/07 and after the amendment of plaint, I.A. No.7272/07 was filed for appointment of a Commissioner and the report and plan filed by the Commissioner thus appointed is Exhibit P4. Plaintiffs filed Exhibit P5 objection to the commissioner's report and also filed I.A.No.2016/08 for getting the commission report and plan set aside. However, as per Exhibit P7 order, the court below, observing that the commission report cannot be set aside without taking evidence and that the suit is of the year 2004 and is a targetted one, disposed of the said I.A.No.2016/08 directing that objections to the commission report shall be considered during trial of the suit, at the time of examination of the Commissioner and Surveyor. It WPC 3457/09 3 is aggrieved by Exhibit P7 order so passed that the petitioner/first plaintiff has filed this writ petition seeking for an order setting aside Exhibit P7 and for a direction being given to the learned Sub Judge to remit the commission report and plan as prayed for in I.A.No.2016/08 before trial of the suit commences and to obtain a proper report and plan rectifying the mistakes and omissions pointed out by the petitioner. 3. The suit is one of the year 2004 and it is not disputed that it is a targettd one. Exhibit P7 order was passed on 9.12.2008. But this writ petition is filed only on 2.2.2009 obtaining certified copy of the order on 17.1.2009 as per copy application filed on 11.12.2008. If at all the petitioner was desirous of getting emergent orders or directions from this Court, he could have applied for a carbon copy of the order immediately on delivery of the order and approached this Court so as to have the matter remitted to the WPC 3457/09 4 Commissioner in such a way that the court will not be inconvenienced in disposing of the targetted suit. The court below has, however, disposed of the application without prejudice to raising the grounds set forth in the objection assailing the commission report at the stage of trial. The apprehension of the petitioner is that at the stage of trial, even in case the court below finds that the commission report is not acceptable, for want of a proper commission report and plan, the suit will be decided against the petitioner/first plaintiff. The grievance so submitted is not devoid of merit. In the result, I dispose of this writ petition directing the court below to consider the acceptability of the commission report and plan after adducing evidence at trial of the suit, examining the commissioner as well and that if the court finds that the commission report is not liable to be accepted and a decree cannot be passed WPC 3457/09 5 accepting the said report and plan, the court shall not dispose of the suit against the plaintiffs for want of a proper commission report and plan, but shall afford an opportunity to the plaintiffs to obtain a proper commission report and plan and shall dispose of the suit only thereafter. The above direction will redress the grievance of the petitioner. Petitioner is directed to produce a copy of this judgment in the court below forthwith with notice to the counsel for the respondents, as this writ petition is being disposed of without notice to them. Issue copy of this judgment to the counsel for the petitioner urgently. 3rd February, 2009 (K.P.Balachandran, Judge) tkv