IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 WP(C).No. 4946 of 2009(L) ------------------------- OS.187/2002 of MUNSIFF'S COURT, PALA .................... PETITIONER(S): -------------------------- C.R.BIJU, AGED 38 YEARS, S/O.LATE RAMAKRISHNAN NAIR, RESIDING AT CHENNACKATTUKUNNEL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE, IDUKKI DISTRICT. BY ADVS.MR.JOHN JOSEPH VETTIKAD, MR.C.JOSEPH JOHNY. RESPONDENT(S): ---------------------------- BALAKRISHNAN NAIR, AGED ABOUT 55 YEARS, S/O.RAMAKRISHNAN NAIR, RESIDING AT CHENNACKATTUKUNNEL HOUSE, KIZHAPARAYAR KARA, POOVARANY VILLAGE, KOTTAYAM DISTRICT. BY ADVS. MR.R.PADMARAJ, MR.BIJU HARIHARAN, MR.N.P.SETHU, MR.K.M.VIKAS, MR.ANTONY JOSEPH MARIADAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4946/2009 L APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMPROMISE DECREE IN O.S.NO.91/2000 OF THE MUNSIFF COURT, PALA. P2: COPY OF THE PARTITION DEED NO.3010/2001 DTD. 4/12/2001 OF SRO., MEENACHIL. P3: COPY OF THE PLAINT IN O.S.NO.187/2002 OF THE MUNSIFF COURT, PALA. P4: COPY OF THE WRITTEN STATEMENT IN O.S.NO.187/2002 OF THE MUNSIFF COURT, PALA. P5: COPY OF THE PLAINT IN O.S.NO.120/2004 OF THE MUNSIFF COURT, PALA FILED BY THE RESPONDENT. P6: COPY OF THE WRITTEN STATEMENT IN O.S.NO.120/2004 OF THE MUNSIFF COURT, PALA FILED BY THE RESPONDENT. P7: COPY OF THE COMMISSION REPORT IN O.S.NO.120/2004. P8: COPY OF THE APPLICATION DTD. 6/08/2003 FILED BY THE RESPONDENT FOR THE APPOINTMENT OF THE COMMISSIONER IN O.S.187/2002. P9: COPY OF THE OBJECTION TO THE COMMISSION APPLICATION FILED BY THE PETITIONER HEREIN IIN O.S.NO.187/2002 OF THE MUNSIFF COURT, PALA. P10: COPY OF THE JUDGMENT IN WPC.NO.19544/2004 OF THIS HON'BLE COURT. P11: COPY OF THE WORK MEMO FILED BY THE PETITIONER BEFORE THE COMMISSIONER. P12: COPY OF THE COMMISSION REPORT DTD. 4/12/2008 IN O.S.NO.187/2002 AND IN O.S.NO.120/2004. P13: COPY OF THE OBJECTION TO THE COMMISSION REPORT FILED BY THE PETITIONER DTD. 3/2/2009. P14: COPY OF THE ORDER DTD. 6/02/2009 IN I.A.NO.234/2009 IN O.S.NO.187/2002. P15: COPY OF THE APPLICATION IN I.A.NO.251/2009 IN O.S.NO.187/2002 FILED BY THE PETITIONER DTD. 4/02/2009. P16: COPY OF THE ORDER DTD. 6/02/2009 IN I.A.NO.251/2009 IN O.S.NO.187/2002. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ Kss P.A.TO JUDGE S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 4946 OF 2009 L ```````````````````````````````````````````````````` Dated this the 8th day of July, 2009 J U D G M E N T The writ petition is filed against an order passed by the learned Munsiff, Pala, declining the request made by the petitioner for setting aside a Commission report and plan, which was prepared and filed by an Advocate Commissioner in OS.No.187/02. Petitioner is the defendant in that suit and the respondent, the plaintiff. Suit was one for fixation of boundary. Petitioner has filed another suit as OS.No.120/04 before the very same court seeking the relief of injunction. Both the suits are ordered to be tried jointly. On a previous occasion, when the Commissioner filed a report, the petitioner moved an application for determination of certain points, which not being entertained he approached this court filing a writ petition. This court by Ext.P10 judgment dated 1.1.2008 in W.P.(C) No.19544/04 directed the court below to give instructions to the Commissioner to note the particulars required by the defendant / petitioner as well. The plaintiff and the defendant were directed to file work memo before the Commissioner. Accordingly, work memos were filed and the Commissioner after conducting inspection filed a report before the WPC.4946/09 : 2 : court. Against that report, the petitioner raised objections and sought for setting it aside contending that the matters sought for in his work memo had not been properly ascertained by the Advocate Commissioner. The application moved by the plaintiff was dismissed. Ext.P14 is the copy of the order. Propriety and correctness of that order is challenged in this writ petition. 2. I heard the counsel. The impugned order reveals that the objection to the Commission report was filed on the date when the suit was listed for trial. Learned counsel for the petitioner submitted that objections were filed earlier with an advance petition but it was taken only on the day it was listed. Whatever that be, the question emerging for consideration is whether this court has to sit in judgment on the merit of the Commissioner report and plan in exercise of its visitorial jurisdiction under Article 227 of the Constitution of India. The petition moved by the petitioner for remitting the Commissioner report has been turned down by Ext.P14 order. Having regard to the facts and circumstances presented, I find that since the recording of evidence of the case has not commenced by virtue of the order of stay passed by this court in the present proceedings, the petitioner WPC.4946/09 : 3 : can be given one more opportunity to substantiate his objections in the trial of the suit. In case, learned Munsiff find that the objections raised by him to the report and plan are sustainable, after recording the evidence, appropriate orders thereof have to be passed. I make it clear that enquiry on the objections filed by the petitioner to the report and plan is not required to be taken preliminarily but only to be considered in the trial of the suit. But further proceedings in the trial and disposal of the suit shall depend upon the merit of the report and plan. If the learned Munsiff finds, after recording the evidence of the case, including the challenges raised against the report and plan, that a remission is required after setting aside the report and plan needless to point out appropriate orders thereof has to be passed and disposal of the suit shall be strictly in accordance with law. Ext.P14 order will not stand in the way of the petitioner in leading evidence to substantiate his objections to the report and plan. Subject to the above observations, the writ petition is closed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks