IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(C).No. 22218 of 2007(T) ----------------------------------- AGAINST THE ORDER DATED 31/05/2007 IN IA 3606/06 IN OS.223/2005 OF MUNSIFF COURT, THIRUVALLA .................... PETITIONER: ------------------ T.D. CHACKO, S/O. DANIEL, THALASSERIL VEETTIL, KIZHAKKENOTHARA MURI, ERAVIPEROOR VILLAGE. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENTS: --------------------- 1. P.C. JOHN, THALASSERIL PUTHENPURAYIL, KIZHAKKENOTHARA MURI, ERAVIPEROOR VILLAGE. 2. P.C. RAJU, B/O. P.C. JOHN, THALASSERIL PUTHENPURAYIL, KIZHAKKENOTHARA MURI, ERAVIPEROOR VILLAGE. 3. MOLLYKUTTY VARGHESE, W/O. P.C. VARGHESE, THALASSERIL PUTHENPURAYIL, KIZHAKKENOTHARA MURI, ERAVIPEROOR VILLAGE. 4. SHERIN VARGHESE, D/O.LATE P.C.VARGHESE, THALASSERIL PUTHENPURAYIL, KIZHAKKENOTHARA MURI, ERAVIPEROOR VILLAGE. BY ADV. SRI.BABU CHERUKARA - R1-R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22218 OF 2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1: PHOTOCOPY OF THE PLAINT IN O.S.223/2005 FILED BEFORE THE MUNSIFF'S COURT, THIRUVALLA EXT.P2:- PHOTOCOPY OF THE WRITTEN STATEMENT FILED IN O.S.NO.223/05 BEFORE THE MUNSIFF'S COURT, THIRUVALLA EXT.P3:- PHOTOCOPY OF THE COMMISSION REPORT WITH SKETCH FILED IN O.S.NO.223/05 BEFORE THE MUNSIFF'S COURT, THIRUVALLA EXT.P4:- PHOTOCOPY OF THE COMMISSION REPORT WITH SKETCH FILED IN O.S.NO.223/05 BEFORE THE MUNSIFF'S COURT, THIRUVALLA EXT.P5:- PHOTOCOPY OF THE COMMISSION APPLICATION FILED IN O.S.NO.223/05 BEFORE THE MUNSIFF'S COURT, THIRUVALLA EXT.P6:- PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER IN COMMISSION APPLICATION IN O.S.NO.223/05 BEFORE THE MUNSIFF'S COURT, THIRUVALLA EXT.P7:- PHOTOCOPY OF THE ORDER DATED 31.05.2007 IN I.A.NO.3606/2006 IN O.S.NO.223/2005 OF THE MUNSIFF'S COURT, THIRUVALLA -TRUE COPY- P.A. TO JUDGE pac M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No.22218 OF 2007 ............................................ DATED THIS THE 17th DAY OF JUNE, 2008 JUDGMENT Petitioner is the defendant in O.S.223 of 2005 on the file of Munsiff Court, Thiruvalla. Respondents are the plaintiffs. Under Ext.P7 order, learned Munsiff appointed a Commission and Surveyor recording that she is satisfied that it is necessary. Ext.P7 order is challenged in this petition filed under Article 227 of Constitution of India. Ext.P7 order is passed in Ext.P5 application. Ext.P5 application shows that respondents/plaintiffs sought appointment of the Commission without stating anything about the appointment of an earlier Commission or the report submitted by the Commissioner. Ext.P6 objection was filed to the application. The grievance of the petitioner is that learned Munsiff did not consider the objection at all, while passing Ext.P7 order. 2. Learned counsel appearing for petitioner pointed out that there are two other reports available in the suit and court did not consider the grounds alleged by the petitioner in Ext.P6 and in such circumstances, Ext.P7 order is not sustainable. 3. On hearing the learned counsel, I find that there is force WP(C) 22218 OF 2007 2 in the submission. Ext.P7 order does not show that while passing the order, learned Munsiff has taken into consideration, the objection raised by petitioner in Ext.P6. So also, the effect of the earlier reports available in the suit or whether a Commission is to be taken at this stage, as canvassed by the petitioner, was also not taken into consideration. In such circumstances, Ext.P7 order is quashed. Learned Munsiff is directed to pass appropriate order in I.A.3606 of 2006, after hearing the learned counsel appearing for both sides and taking into consideration the objection raised in Ext.P6, in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk/-