IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 30972 of 2009(O) -------------------------- OS.1199/2006 of II ADDL.M.C., ERNAKULAM .................... PETITIONER(S): --------------- 1. XAVIER, PALAPPARAMPIL HOUSE, KUMARANASAN ROAD, KADAVANTHRA.P.O, ERNAKULAM - 682 020. 2. ROSY XAVIER, W/O. XAVIER, -DO- BY ADV. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S): --------------- BOSCO D MUNDACKAL, MUNDACKAL HOUSE, KUMARANASAN ROAD, KADAVANTHRA.P.O, KOCHI-20. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.30972/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMISSION APPLICATION I.A.NO.11440/06. EXT.P2: COPY OF THE I.A.NO.6448/08 EXT.P3: COPY OF ORDER DATED 22.11.2008 IN I.A.NO.6448/08 EXT.P4: COPY OF THE ORDER DATED 27.8.2009 IN I.A.NO.6448/08 /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.30972 OF 2009 (O) ----------------------------------- Dated this the 21st day of December, 2009 J U D G M E N T Petitioners are the defendants in O.S.No.1199 of 2006 pending before the IInd Additional Munsiff Court, Ernakulam. Respondent is the plaintiff and the suit is for perpetual prohibitory injunction. Petitioners/defendants resisted the suit claim by filing a written statement. Among other contentions, they disputed the identity of the plaint property. At the instance of the plaintiff, an Advocate Commissioner, after conducting local inspection and measuring out the property with the assistance of the surveyor filed a report and plan. Petitioners/defendants filed objection to that report and plan. Sustaining the objections raised, the learned Munsiff passed Ext.P3 order setting aside that report directing the Commissioner to file a fresh report and plan. Subsequently, the court below suo motu reviewed that order and dismissed the application moved by the defendants for setting aside the previous commission report, is the grievance espoused by the petitioners by filing this petition invoking the supervisory WPC.30972/09 2 jurisdiction vested with this Court under Article 227 of the Constitution of India. Ext.P4 is the copy of the order issued by the court below, which is challenged as improper and illegal. 2. Notice was ordered to the respondent. In addition, petitioners were also directed to serve copy of the notice on the counsel appearing for the respondent in the court below and file memo. Accordingly, a memo evidencing such service has been filed. Service found sufficient. Respondent has not entered appearance. A report was called from the learned Munsiff with respect to Ext.P4 order challenged in the petition. It is reported that on the basis of the interim report filed by the Advocate Commissioner, parties were directed to be present, but both parties were not present, and, hence, Ext.P4 order was issued. The report would indicate that the plaintiff did not render sufficient cooperation for execution of the commission order. Whatever that be, the grievance of the defendants is that under Ext.P4 order, the court below had dismissed their previous application for setting aside the commission report which had been allowed by Ext.P3 order. It appears that reference to the interlocutory application made in Ext.P4 order happened to be that of the application moved WPC.30972/09 3 by the petitioners/defendants in lieu of the commission application moved by the plaintiff. I do not want to express any opinion as to whether it is a mistake or not. It is open to the petitioners to bring it to the notice of the learned Munsiff that in case there is any default on the part of the plaintiff in rendering assistance for execution of the commission report, then, the application moved for appointment of a commission alone can be closed and not the subsequent application moved by the defendants for setting aside the report and plan which had already been allowed by the court after hearing both sides. Reserving the right of the petitioners to seek appropriate reliefs before the court below for correcting the order, the writ petition is closed. If any application is filed by the petitioners in the lines indicated above, it shall be disposed on its merits. Hand over a copy of the judgment to the counsel for the petitioner on usual terms and send a copy of the judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp