IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 32823 of 2009(O) -------------------------- OS.107/1999 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER(S): --------------- C.K. KUMARAN, S/O.KUNJAN, PENSIONER, AGED 72 YEARS, RESIDING AT CHALUPURATH KUMARA BHAVANAM, EZHUPUNNA SOUTH MURI OF KODAMTHURUTHU VILLAGE, EZHUPUNNA SOUTH P.O. BY ADV. SRI.T.JAYAKRISHNAN RESPONDENT(S): --------------- 1. THRESIAKUTTY, PUTHUSSERY VELI, EZHUPUNNA SOUTH P.O., CHERTHALA. 2. REGINA, OF DO...DO.... 3. MARY, W/O. ANDROSE PAPPU, PALAPPARAMBIL, EZHUPUNNA, SOUTH P.O., CHERTHALA. 4. SELINA, D/O. ANNAKUTTY, PALISSERIL, EZHUPUNNA SOUTH P.O., CHERTHALA. 5. STEPEHN, S/O. ANNAKKUTTY, PLASSERIL HOUSE, EZHUPUNNA SOUTH, CHERTHALA. 6. XAVIER, S/O. ANNAKUTTY, PLASSERIL, EZHUPUNNA SOUTH P.O., CHERTHALA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.32823 OF 2009 -------------------------------- Dated this the 17th day of November 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To call for the records leading to Ext.P7 and to quash Ext.P7 and to direct issuance of a fresh commission with the help of District Survey Superintendent to prepare a plan. ii) Such other reliefs that are deemed fit to be granted. Iii) Awarding the costs of the proceedings from the contesting respondents. 2. Petitioner is the plaintiff in O.S No. 107 of 1999 on the file of the Munsiff Court, Cherthala. Suit is one for injunction, both prohibitory and mandatory, and the respondents are the defendants. Challenge raised in the writ petition is against Ext.P7 order passed by the learned Munsiff, by which, after considering the objections raised by the petitioner/plaintiff to the commission report and plan W.P.(C).No.32823 OF 2009 Page numbers collected in the suit, the learned Munsiff has remitted the report but limiting the scope of enquiry for some clarification only. Grievance of the petitioner/plaintiff is that on such remission, an opportunity should be extended to the plaintiff to have verification of the plan already prepared with the assistance of the District Superintendent of Survey. Petitioner has therefore invoked the visitorial jurisdiction of this court under Article 227 of the Constitution of India by filing this writ petition for issuing appropriate writ, direction/order to the court below for providing the advocate commissioner, the assistance of the District Superintendent of Survey, which is stated to be essential for a fair and proper disposal of the suit on merits. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and hence it is dispensed with. It is noticed from the exhibits produced in the writ petition previously the petitioner had challenged before this court an order passed by the court below to consider the merit of his W.P.(C).No.32823 OF 2009 Page numbers objections to the commission report and vide Ext.P6 judgment this court has issued some direction how the enquiry on the objections over report has to be conducted. Pursuant thereto, after taking evidence, the learned Munsiff found that except to the extent that there is no sufficient data in the commission report for ascertaining the area, it does not suffer from any other infirmity. In other words, the objections raised by the plaintiff on other aspects of the report had been overruled by the learned Munsiff vide Ext.P7 order. The report has been remitted under Ext.P7 order only for the purpose of curing the defect pointed out by the court. When such be the case and it is seen that the suit has been instituted nearly a decade ago I find any interference by this court at this stage, that too with respect to Ext.P7 order passed on the merit of a commission report is likely to stall the proceedings and delay the disposal of the suit. I do not find any merit in the writ petition, and it is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE vdv //TRUE COPY// P.A TO JUDGE