IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 22179 of 2009(O) -------------------------- OS.8/2007 of MUNSIFF'S COURT, KOLENCHERRRY .................... PETITIONER(S): ------------------------- 1. DAVID, S/O.KURIAKO, AGED 55 YEARS, THOTTUNGAMALAYAIL HOUSE, THIRUVANIYOOR KARA, KUNNATHUNADU TALUK. 2. ANNAKUTTY, W/O.DAVID, AGED 51 YEARS, THOTTUNGAMALAYAIL HOUSE, THIRUVANIYOOR KARA, KUNNATHUNADU TALUK. 3. ALIAS, S/O.KURIAKO, AGED 50 YEARS, THOTTUNGAMALAYAIL HOUSE, THIRUVANIYOOR KARA, KUNNATHUNADU TALUK. BY ADV. MR.BIJU ABRAHAM RESPONDENT(S): --------------------------- 1. THE THIRUVANIYOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY. 2. THOTTUMKAMALA LAKSHAMVEEDU COLONY, RESIDENCE ASSOCIATION, THOTTUMKAVALA, VETTICKAL P.O., THIRUVANIYOOR VILLAGE, REPRESENTED BY ITS SECRETARY MATHEW, S/O.CHACKO, AGED 40 YEARS, NIRAPPEL HOUSE, THOTTUMKAVALA COLONY, THIRUVANIYOOR VILLAGE. 3. KUMARAN.T.A. @ THAMBI, S/O.AYYAPPAN, AGED 25 YEARS, THURAYIL HOUSE, VETTICKAL P.O., THIRUVANIYOOR VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.22179 OF 2009 (O) ----------------------------------- Dated this the 5th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for the records relating to the petitioners grievance. ii. to issue a writ of certiorari or any other appropriate writ, order or directions quashing Ext.P8 order of the court below holding that the same is improper and illegal. iii. to issue a writ of mandamus or any other appropriate writ, order or direction allowing Ext.P7 application with a further direction to the court below to issue a fresh commission to fix the boundary of the schedules property on the basis of Exts.P2 and P3 already on record. iv. to issue any other appropriate writ, order or directions as this Hon'ble Court deem fit on the facts and in the circumstances of the case and allow this petition with cost. 2. Petitioners are the plaintiffs in O.S.No.8 of 2007 on the file of the Munsiff's Court, Kolenchery. Suit is for fixation WPC.22179/09 2 of boundary. An Advocate Commissioner appointed by the court with the assistance of the Surveyor identified the suit property, prepared a report and plan. Plaintiffs not satisfied with the report and plan filed objections seeking for setting aside those documents and remitting the report for fresh consideration by the Commissioner. The learned Munsiff after hearing both sides declined the request of the plaintiffs passing Ext.P8 order. Propriety and correctness of Ext.P8 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P8 order impugned in the petition, I find no notice to the respondents is necessary, and, hence, it is dispensed with. Correctness of a Commission report filed in a suit is challenged in the writ petition imputing the order passed by the learned Munsiff that the objections raised against that WPC.22179/09 3 report by the petitioners are not sustainable. This Court has expressed in more than one case that even in exercise of revisional jurisdiction under Section 115 of the CPC, it is impermissible to examine or sit in judgment over the correctness of a Commission report prepared and filed in a suit pending for adjudication before a civil court. Any opinion by this Court on that piece of evidence while the case is yet to be tried, without having reference to the pleadings of the parties or the materials produced to substantiate the suit claim or the challenges raised to resist that claim, cannot be proceeded in exercise of revisional jurisdiction or resorting to its visitorial jurisdiction vested under Article 227 of the Constitution of India. So much so, I find the present writ petition challenging Ext.P8 order passed by the learned Munsiff declining the request of the plaintiffs to remit the report of the Commissioner cannot be entertained. The leaned counsel for the petitioners submitted that he has no other efficacious remedy to challenge the correctness of the report, I do not agree. In respect of orders passed where no right of appeal is provided under Section 105 (1) of the CPC WPC.22179/09 4 makes it emphatically clear the legality, propriety and correctness of such orders can be challenged in the appeal, if at all any adverse decision is made against the final order passed in the suit or proceedings. The writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.M.C.NO. OF 2002 () ----------------------------------- Dated this the day of April, 2009 O R D E R S.S.SATHEESACHANDRAN JUDGE prp