IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 20832 of 2008(E) ---------------------------------------- (I.A.NO.58/2008 IN O.S.10/2003 OF MUNSIFF'S COURT,KOLENCHERRY) PETITIONER: -------------------- ULAHANNAN, S/O.KURIAKOSE, AGED 71 YEARS, PALPATTU HOUSE, KARUKAPPILLY KARA, IKARANADU SOUTH VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENT: ----------------------- PAULOSE, S/O.THOMMAN, AGED 51 YEARS, KOOTTUMANJOTTIL HOUSE, KARUKAPPILLY KARA, IKARANADU SOUTH VILLAGE. BY ADV. SRI.DINESH R.SHENOY - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20832/2008 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMON JUDGMENT DTD. 25/07/2007 IN A.S.NO.51/2007 AND A.S.NO.52/2008 OF SUB COURT, PERUMBAVOOR. EXT.P2: COPY OF THE OBJECTION DTD. 27/02/2008 IN I.A.58/2008 IN O.S.10/2003 OF THE MUNSIFF COURT, KOLENCHERRY. EXT.P3: COPY OF THE ORDER DTD. 26/06/2008 IN I.A.NO.58/2008 IN O.S.10/2003 OF THE MUNSIFF COURT, KOLENCHERRY. EXT.P4: COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.58/208 IN O.S.NO.10/2003 OF THE MUNSIFF COURT, KOLENCHERRY. EXT.P5: COPY OF THE REPORT OF THE COMMISSIONER IN I.A.NO.284/2007 IN O.S.10/2003 ALONG WITH THE PLAN. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 20832 OF 2008 ------------------------------------------ Dated this the 27th day of August, 2008 JUDGMENT Petitioner is the defendant and respondent the plaintiff in O.S.10 of 2003 on the file of Munsiff Court, Kolencherry. That suit was originally disposed along with O.S.14 of 2004. A.S.51 of 2007 and A.S.52 of 2007 were preferred challenging the common judgment in O.S.10 of 2003 and O.S.14 of 2004 before Sub Court, Perumbavoor. Under Ext.P1 judgment, Appellate Court set aside the decree and judgment and remanded both the suits for fresh disposal after affording an opportunity to the parties to adduce further evidence. 2. Subsequent to the remand, I.A.284 of 2007 was filed by the petitioner for appointing a commission. The commissioner submitted Ext.P5 report and plan. Respondent thereafter filed I.A.58 of 2008, an application to remit the report back to the commissioner to submit a further report. Petitioner filed Ext.P2 objection to the said application. Under Ext.P3 order, learned Munsiff allowed the application. This petition is filed under Article 227 of Constitution of India challenging Ext.P3 order. WP(C)20832/08 2 3. Learned counsel appearing for petitioner and respondent were heard. 4. Learned counsel appearing for petitioner pointed out that the only prayer in Ext.P4 application (I.A.58 of 2008) was to remit the report back to the commissioner and there was no prayer to set aside the report and still under Ext.P3 order the learned Munsiff set aside the report. Paragraph 6 of Ext.P3 order shows that the finding was that the properties scheduled in the plaint can be identified only after measuring the entire properties. The learned Munsiff thereafter held: “It is seen that the commission report filed in I.A.No.284 of 2007 is set aside and remitted back and the commissioner has to file a report noting the following points: 1) Identified the properties comprised in survey No.1047/3A, 1047/3B, 1047/3B2 which has been obtained as per document No.2802 of 1987 of Sub Registrar Office, Puthencruz and prepare a sketch regarding these properties. 2) Note the improvements made in the dotted portion of the earlier plan WP(C)20832/08 3 prepared by the Taluk Surveyor, which is starting from the ramp and such other things which has been asked to the commissioner by both parties during the inspection.” 5. When neither the petitioner nor the respondent sought an order to set aside the report submitted by the commissioner, under Ext.P3 order learned Munsiff should not have set aside the report. Even the prayer of the respondent was only to remit the report, it is very clear that learned Munsiff did not apply his mind or consider even the contention or objection. In such circumstances Ext.P3 order is set aside. Learned Munsiff is directed to pass fresh orders in I.A.58 of 2008 after hearing the parties. Learned Munsiff must hear petitioner defendant as well as respondent plaintiff and to take into consideration the objections raised by the plaintiff that there is no necessity to measure the entire properties. Writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-