IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 21612 of 2007(W) -------------------------- OS.548/2006 of I ADDL.M.C.,THRISSUR .................... PETITIONERS: --------------- 1. RAMACHANDRAN, S/O.MANNAMPARAMBATH, KUNJIPILLA NESSIAR, CHETTAKKULAM DESOM, CHAZHOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. RAJALAKSHMI, W/O.RAMACHANDRAN, KUNJIPILLA NESSIAR, CHETTAKKULAM DESOM, CHAZHOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL RESPONDENTS: --------------- 1. SUBHADRA AMMA, W/O.VADAKKE ELLATH GOPALAN, EARVU VILLAGE - DESOM, THRISSUR TALUK, THRISSUR DISTRICT. 2. KAMALAKSHY AMMA, D/O.VADAKKE ELLATH NARAYANI AMMA, CHETTAKKULAM DESOM, CHAZHOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 3. APPU @ SIVASANKARAN, S/O.KAMALAKSHY AMMA, CHETTAKKULAM DESOM, CHAZHOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 4. MOHANDAS, S/O.KAMALAKSHY AMMA, CHETTAKKULAM DESOM, CHAZHOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 5. KRISHNAKUMAR, S/O.KAMALAKSHY AMMA, CHETTAKKULAM DESOM, CHAZHOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 6. CHANDRAN @ RAMACHANDRAN, S/O.KAMALAKSHY AMMA, CHETTAKKULAM DESOM, CHAZHOOR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. ADV. SRI.K.N.PADMAKUMAR FOR R1,3,4,5,6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21612 of 2007(W) APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.548 OF 2006 BEFORE THE COURT OF MUNSIFF, THRISSUR DTD. 22.02.2006 EXHIBIT P2 : STATEMENT FILED BY THE 6th DEFENDANT IN EXHIBIT P1 SUIT ON 31.07.2006 EXHIBIT P3 : REPLICATION FILED BY THE PLAINTIFF TO EXHIBIT P2 STATEMENT ON 15.09.2006 EXHIBIT P4 : COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.548 OF 2006 BEFORE THE COURT OF MUNSIFF, THRISSUR DTD. 01.02.2006 EXHIBIT P5 : OBJECTION FILED BY 6th DEFENDANT TO THE COMMISSION REPORT, DTD. 03.04.2006 EXHIBIT P6 : I.A.NO.2763 OF 2006 FILED BY the 6th DEFENDANT FOR SETTING ASIDE THE COMMISSIONER;S REPORT EXHIBIT P7 : OBJECTION FILED BY THE PETITIONERS TO EXHIBIT P6 ON 03.08.2006 EXHIBIT P8 : ORDER DTD. 12.01.2007 IN .A.NO.2763 OF 2006 IN .A.NO.1505 OF 2006 IN N O.S.548 OF 2006 OF THE 1st ADDITIONAL MUNSIFF COURT, THRISSUR RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 21612 of 2007 --------------------------------------- Dated this 14th day of July, 2010 JUDGMENT Plaintiff in O.S.No.548 of 2006 of the court of learned Additional Munsiff-I, Thrissur is the petitioner before me challenging Ext.P8, order dated 12-01-2007 on I.A.No.2763 of 2006. Petitioner sued respondents for a decree for prohibitory injunction. Respondents contended that petitioner committed mischief with respect to the southern boundary of suit property, trespassed into a portion of property belonging to them and put up certain pillars on the southern boundary of the said property. As per order on I.A.No.1505 of 2006 Advocate Commissioner submitted report (Ext.P4). Defendant No.6 was not satisfied with the report and filed I.A.No.2763 of 2006 to set aside that report. On that application evidence was recorded. Learned Munsiff vide Ext.P8, order found that the report is liable to be set aside and did so. That order is under challenge at the instance of petitioner/plaintiff. Learned counsel for petitioner contends that no circumstance existed to set aside the report. If at all any further information is required to be obtained through the Commissioner what was required was to appoint another Commissioner or, remit W.P.C.No.21612 OF 2007 Ext.C1 to the same Commissioner for further information. Learned counsel for respondents support the order under challenge. 2. I have gone through Ext.P8, order and it is seen from paragraph 7 of the order that what is referred to there is certain inadequacy in the report in that certain relevant aspects were not noted by the Advocate Commissioner. If that be so, it is not necessary to set aside the report as such as the inadequacy noted by the learned Munsiff can be corrected by obtaining further information through the Advocate Commissioner. On hearing counsel on both sides and going through Ext.P8, order I am satisfied that it is not necessary to set aside Ext.C1, report and instead what is required is to remit the report of the same Advocate Commissioner for further inspection and report taking into account the objection raised by respondent No.1/defendant No.6. Resultantly the writ petition allowed in the following lines: 1. Ext.P8, order setting aside Ext.C1, report is set aside. 2. Learned Munsiff shall remit Ext.C1, report to the Advocate Commissioner for inspection of the suit property and further report taking into account the objection raised by respondent No.1/defendant No.6. (THOMAS P JOSEPH, JUDGE) Sbna/-