IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WP(C).No. 7 of 2010(O) -------------------------------- I.A.3093/2009 IN OS.274/2004 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): ----------------------- ADHIKARATHVALAPPIL PAREETH, S/O.SAINUDHEEN MUSLIAR, KUTTIPPURAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. MR.C.M.MOHAMMED IQUABAL RESPONDENT(S): ------------------------- 1. KORATH ILLATHVALAPPIL MAMMI @ BAVA HAJI, S/O.BAVU HAJI, KUTTIPPURAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT., TIRUR P.O. 2. KUNNAMCHOLA PULLAKKATTIL ALI, S/O.KUNHU, KUTTIPPURAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, TIRUR P.O. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.7 OF 2010 -------------------------------- Dated this the 18th day of January 2010 ---------------------------------------------------------- JUDGMENT Petitioner is one among the plaintiffs in O.S No.274 of 2004 on the file of Munsiff Court, Tirur. Respondents are the defendants in the suit which is one for fixation of boundary and prohibitory injunction with an alternative prayer for recovery of possession. Admittedly, the suit has now came up in the list for trial. Plaintiffs have moved two applications, one for removing the case from the list and the other for appointment of an advocate commissioner to measure out the property with the assistance of a surveyor to fix its boundary especially the northern boundary. Previously the court had appointed an advocate commissioner, but, for one or other reason, that order was returned unexecuted. The commissioner appointed second time also returned the order with a report that surveyor was not available and there was absence of cooperation from the plaintiffs to execute the order. W.P.(C).No. 7 OF 2010 Page numbers Whatever that be, when the applications of the plaintiffs were pressed into service, according to the petitioner, the application for removing the case from the list was dismissed and the application for commission was posted for consideration along with the suit. In the above circumstance, petitioner has approached this court with the above writ petition invoking its supervisory jurisdiction for issue of a writ/order to the court below to consider and dispose the application for commission moved by the plaintiffs before proceeding with the trial. 2. A report from the learned Munsiff was called for. The report prima facie would indicate some misrepresentation on the part of the plaintiffs with respect to the orders passed by this court on the present writ petition. The learned counsel for the petitioner being given notice of the report filed by the learned Munsiff, submitted, it so happened on account of some mistake in the communication conveyed to his counter part in the lower court. Whatever that be, I am not adverting to that aspect W.P.(C).No. 7 OF 2010 Page numbers for disposal of this writ petition. It is seen from the report of the learned Munsiff the consideration of the commission application moved by the plaintiffs was deffered taking a view that it can be considered during the course of trial. If actually the question of fixation of boundary or identification of property arise for determination in the suit I find the procedure followed by the learned Munsiff is not correct. Suit being one for fixation of boundary, at this stage, before the parties let in evidence, on the basis of the pleadings alone, the court should not form any view with respect to the disputed questions involved as it is likely to cause prejudice. Whatever be the reasons that lead to nonexecution of the commission orders issued by the court earlier, the subsequent application moved by one or the other party for appointment of a commission deserve to be examined on merits and disposed of in accordance with law. I am not expressing any opinion that the court has to pass any favourable order on the application, but only stating that it has to consider the commission application of the plaintiffs W.P.(C).No. 7 OF 2010 Page numbers and dispose it of and then only proceed with the trial of the suit. The learned Munsiff is directed to consider and dispose the commission application untrammelled by the representation made by the counsel with respect to the orders passed in the writ petition, which are shown to be incorrect. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv