IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 741 of 2009(L) ---------------------------------------- IA.4683/2008 IN OS.902/2006 of ADDL.MUNSIFF COURT, KOLLAM .................... PETITIONER: VAVACHAN, AGED 66, S/O.ABROSE, R/AT JOSE BHAVAN @JOSE VILLA, CITY CENTRE NAGAR NO. 30, BUNGLOVE PURAYIDAM,VADAKKUMBHAGAM MURIYIL, KOLLAM EAST VILLAGE. BY ADV. SMT.T.S.MAYA (THIYADIL) RESPONDENTS: 1. XAVIER, AGED 40, S/O.VARGHESE, R/AT VICTORIA COTTAGE,VADAKKUMBHAGAM MURI, KOLLAM EAST VILLAGE. 2. SHEEJA, AGED 34, W/O.XAVIER, R/AT VICTORIA COTTAGE,VADAKKUMBHAGAM MURI, KOLLAM EAST VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.741 of 2009 L -------------------------- JUDGMENT This writ petition is filed by the plaintiff in O.S.No.902/06 on the file of the Munsiff's Court, Kollam assailing Exhibit P10 order passed by it on I.A.No.4863/08, dismissing the said application to set aside the commission report. 2. On I.A.No.4683/08, the court below conducted an enquiry, wherein, the Commissioner and the Surveyor, who prepared the plan, were examined respectively as CW1 and CW2 and the report and plan were marked as Exhibit C1 series. Respondents/ defendants had no objection to the commission report. It was urged by the petitioner/plaintiff that the measurements are not correct and the boundary is not correctly located. The learned Munsiff observed in the impugned order that he finds no reason to set aside Exhibit C1 series at that stage and that the validity of Exhibit C1 series can be considered after taking entire WPC 741/09 2 evidence, as the suit has been included in the list and stands posted for trial. It was thus observing, that the court below passed the impugned order, dismissing the application to set aside the commission report. 3. Exhibit P10 order was passed on 14.10.2008, at a time when the suit had already been included for trial in the special list. Petitioner did not apply for a carbon copy thereof. On the other hand, on 30.10.2008, copy of Exhibit P10 order was applied for and copy was delivered to the petitioner/plaintiff on 27.11.2008. Still, this writ petition is filed only on 6.1.2009 with the sole object of having the trial of the case protracted. There is no merit in this writ petition, especially when, the court below has stated in the impugned order that validity of Exhibit C1 series can be considered after taking entire evidence. WPC 741/09 3 This writ petition, in the circumstances, is disposed of directing the court below that in case the commission report is ultimately found to be liable to be set aside, the suit shall not be disposed of without affording an opportunity to the petitioner/plaintiff to get down a proper commission report. 8th January, 2009 (K.P.Balachandran, Judge) tkv