IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No.3278 of 2009 (M) --------------------------------- OS.625/2005 of ADDL.M.C.-I, KOZHIKODE .................... PETITIONER(S): --------------- K.MADHAVAN NAIR, AGED 63 YEARS, S/O.KUNJIRAMAN NAMBIAR, KALATHINKAL HOUSE, NADUVALLOOR AMSOM DESOM, KOZHIKODE. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN RESPONDENT: ----------------- VIJAYA RAGHAVAN, AGED 37 YEARS, S/O.RATHNAMINIAMMA, VENGAPPATA HOUSE, PADINJATTUM MURI AMSOM, KIZHAKKUM MURI DESOM, KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3278 of 2009 ------------------------------------------------ Dated this the 30th day of January, 2009 JUDGMENT Heard counsel for the petitioner. 2. The petitioner is the defendant in O.S.625/05 on the file of the Munsiff's Court, Kozhikode instituted by the respondent. The petitioner filed I.A.2710/08 for setting aside the commission report and plan got down in the said suit. The court below considered the said application and vide Ext.P6 order dismissed it holding that the commission report and plan is not liable to be set aside. Ext.P6 order is passed on 16/09/08. The petitioner applied for a copy thereof on 18/09/08, copy was ready on 11/11/08 and it was taken delivery of on 20/11/08. Thereafter, this Writ Petition is filed on 29/01/09 after more than two months when the suit itself is in the list on 02/02/09 as submitted by the counsel for the W. P. C. No.3278 of 2009 -2- petitioner. 3. If at all the matter had been brought before this Court sufficiently early, this Court could have considered as to whether there is any merit at all in the application for setting aside the commission report. Inasmuch as the case is in the list on 02/02/09 any interference by this Court now will entail removal of the suit from the list. It is not proper for this Court to interfere and upset the work of the trial court especially in a case where the party has not approached this Court sufficiently early when they could have done so but slept over their rights for more than two months and eight days after receipt of copy of the impugned order. 4. In the result, while refusing to interfere in the impugned order, I dispose of this Writ Petition without prejudice to the rights of the petitioner to adduce evidence at W. P. C. No.3278 of 2009 -3- trial to establish his contentions that the commission report and plan are not liable to be accepted. If the court is convinced that for a just decision of the case the plan and report obtained is not sufficient, the court below shall not dispose of the suit depriving the petitioner of an opportunity to have the commission report remitted or set aside and to obtain a fresh commission report and plan untrammelled by the observations made by the court below in Ext.P6 that the property has been properly identified and demarcated. K.P.BALACHANDRAN, JUDGE kns/-