IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 20188 of 2008(C) -------------------------- O.S.452/2007 OF IIIRD ADDL.MUNSIFF COURT, ERNAKULAM. .................... PETITIONER: ------------------- MARY MATHEW, W/O.MATHEW, 61 YEARS, CHAKKALAKKAL , CHITTOOR KARA, CHERANALOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM. BY ADV. SRI.R.SUDHISH, ADV. SMT.M.MANJU. RESPONDENT: ---------------------- AUGUSTINE, AGED 80 YEARS, CHAKKALACKAL HOUSE, EAST KADUNALUR KARA, KADUNGALLUR VILLAGE, PARAVUR TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 20188 OF 2008 ------------------------------------------ Dated this the 4th day of July, 2008 JUDGMENT Petitioner is the defendant and respondent the plaintiff in O.S. 452 of 2007. A commission was appointed in the suit and the commissioner submitted Ext.P2 report and sketch. Petitioner filed I.A. 8337 of 2007, an application under Rule 10 of Order XXVI of Code of Civil Procedure, to remit the report to the commissioner. It was dismissed under Ext.P5 order. This petition is filed under Article 227 of Constitution of India challenging Ext.P5 order. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that learned Munsiff should have remitted the report to the commissioner to note the facts mentioned in Ext.P4 petition and therefore Ext.P5 order is to be quashed. The learned counsel pointed out that suit is for fixation of boundary and also permanent prohibitory injunction and the sketch appended to the plan is not a survey plan and plaint B schedule property was not shown therein and in such circumstances the learned Munsiff should have remitted the report. WPC20188/08 2 4. On going through Ext.P4 petition, I find that petitioner has not specifically shown for what purpose the report is to be remitted, as rightly pointed out by the learned Munsiff. Being a suit for fixation of boundary, a proper plan after identification and measurement of the plaint A and B schedule properties is absolutely necessary. But being a defendant, petitioner need not be afraid of the insufficiency of Ext.P3 plan as he could always take advantage of absence of a plan, properly identifying the properties. In view of the failure of the petitioner to specifically plead on what ground or for what reason report is to be remitted, I do not find that there is any illegality or irregularity in Ext.P5 order warranting interference. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-