IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 14940 of 2009(O) -------------------------- OS.519/2002 of MUNSIFF COURT, VAIKOM .................... PETITIONER: --------------- UNNIKRISHNA WARRIER, AGED 39, S/O. P.S. RAGHAVA WARRIER, PADINJATTUCHERRY THEKKEMURIYIL PERUMTHRIKOVIL WARRIATH, VAIKOM TALUK, VAIKOM VILLAGE, KOTTAYAM DISTRICT. BY ADV. MR.G.SREEKUMAR (CHELUR) MS.PREETHY KARUNAKARAN RESPONDENTS: --------------- 1. R. RAJESH, S/O. PUTHIYAMADATHIL RAJAPPAN ACHARI, KIZHAKKUMCHERRY THEKKEMURIYIL, VAIKOM.P.O, VAIKOM TALUK, KOTTAYAM DISTRICT. 2. JOY, S/O. THOMAS, PERUMPALLIYIL, VAIKOM.P.O, VAIKOM TALUK, KOTTAYAM DISTRICT. 3. MOLY, W/O. JOY, PERUMPALLIYIL, VAIKOM.P.O, VAIKOM TALUK, KOTTAYAM DISTRICT. 4. VIJAYALEKSHMI BHAI, W/O. ASHARRYPARAMBU MADATHIL A.N GOPALAKRISHNA KAMATH, VAIKOM.P.O, VAIKOM TALUK, KOTTAYAM DISTRICT. 5. PANKAJAKSHI PILLA, D/O. KARTHIYAYANI PILLA, VAIKOM.P.O, VAIKOM TALUK, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.14940 of 2009 - O --------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “To issue an appropriate writ, order or direction commanding the learned Munsiff, Vaikom to take up Ext.P3 application and to dispose of the same first, previous to commencement of the trial in O.S.No.519/2002 on the file of the Munsiff's Court, Vaikom, in the interest of justice”. 2. The petitioner is one of the plaintiffs in O.S.NO.519/2002 on the file of the Munsiff's Court, Vaikom in which the main relief sought for is fixation of boundary. The commissioner appointed by the court, after local inspection prepared a report and plan. Petitioner wanted the trial court to decide the merit of the report and plan as a preliminary issue contending that there are grave errors in the report and plan. The learned Munsiff posted that application for consideration along with the suit. Petitioner seeks an interim direction for staying the proceedings of the suit and also a writ, order or W.P.(C).No.14940 of 2009 - O 2 direction to the court below to consider his Ext.P3 application before commencement of the trial of the suit. 3. I heard the counsel for the petitioner. 4. Inviting my attention to the plan and report prepared by the commissioner, it is submitted, the plots owned and possessed by the parties to the suit have only a small extent, and serious errors have been committed by the commissioner in determining and fixing those properties, which, if not corrected is likely to cause them grave injury. Only after decision is taken on the merit of the report and plain, according to the counsel, the trial of the suit can proceed, which, otherwise, would lead to miscarriage of justice. 5. Having regard to the submissions made and also taking note of the facts and circumstances presented with reference to the materials produced in the petition, I find that the course desired by the petitioner for determining the merit of the commission report and plan as a preliminary issue will only prolong the trial of the suit. The merits of the commission report and plan can be considered in the trial of the suit and in case the W.P.(C).No.14940 of 2009 - O 3 court finds the report and plan are unacceptable, of course, the court has to pass appropriate orders to set aside those documents remitting the matter for fresh consideration. It is not proper or desirable to take evidence of the commissioner before trial to consider the merits of the report and plan. The writ petition is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-