IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 16967 of 2009(O) -------------------------- I.A.NO.2101/2006 IN OS.456/2006 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ------------------------ CHANDRAN, S/O.N.K. APPUKUTTAN, AGED 68 YEARS, RESIDING AT NEDUVALLIKALAM, OZHIVUPARA, PALLASSENA VILLAGE, CHITTUR TALUK. BY ADV. SMT.P.K.RADHIKA RESPONDENT(S): ----------------------------- PREMALATHA, W/O. GOVINDAN NAIR, RESIDING AT ANTHURE VEEDU, KINNATTINGAL, PALLASSENA AMSAM, CHITTUR TALUK. BY ADV. MR.BINOY VASUDEVAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.16967 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 26th June, 2009 JUDGMENT The Writ Petition is filed by the defendant in O.S.No.456/06 on the file of the Munsiff Court, Chittur. Suit was one for perpetual prohibitory injunction, recovery of possession and putting up of boundary. Defendant had filed written statement resisting the suit claim. On an application moved by the plaintiff, a commissioner conducted local inspection, measured the suit property and filed a report and plan to which the defendant/petitioner filed objections seeking for remission of the report and plan. Objections were filed by the defendant by way of a counter affidavit with a separate I.A. seeking remission of the report. The learned Munsiff, after hearing both sides, dismissed that application. Ext.P2 is the copy of that order. Impeaching the correctness and propriety of that order, the defendant has filed the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. Perusing the materials produced and also Ext.P2 order which is challenged in this Writ Petition, I find, the petitioner/defendant has not been extended W.P.C.No.16967/09 - 2 - an opportunity by the court below to substantiate the objections raised to the commission report by examining the commissioner and also the surveyor who assisted him in preparing the plan and filing of the report. Treating the application filed by the defendant for remission of the report as an I.A., opportunity was given to the plaintiff to file objections. Once such objection was received, after hearing the parties, the court below overruled the objections under Ext.P2 order. That, of course, is not the procedure to be followed in appreciating the objections raised to a report and plan filed by a commissioner. Having regard to the fact that in the suit recovery of possession is also claimed as one among the reliefs, when objections are raised by the defendant to the report and plan prepared by the commissioner, necessarily and inevitably, the defendant should have been extended an opportunity to examine the commissioner and the surveyor. That was not done. Ext.P2 order cannot be sustained and it is liable to be set aside. I do so. I direct the learned Munsiff to consider the report and plan prepared by the commissioner after affording opportunity to both sides to examine the commissioner and also the surveyor, and such examination can be done after including the case in the list so that further delay in trial of the case can be W.P.C.No.16967/09 - 3 - avoided. But, in case, the report is found not acceptable and the remission is required, the recording of further evidence has to adjourned. So much so, it is advisable to examine the commissioner before examining the parties to the suit and an order be passed by the court on the acceptability of the report and plan. The Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE