IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 33097 of 2009(O) -------------------------- OS.83/2005 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): ------------------------ NEYATHOOR SAIDALAVI,S/O.KUTTIRAYIN, THOZHUVANOOR AMSOM DESOM,TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. MR.JAMSHEED HAFIZ RESPONDENT(S): ---------------------------- 1. NEYATHOOR KUNHARAMU,S/O.KUTTIRAYIN, THOZHUVANOOR AMSOM DESOM,TIRUR TALUK, MALAPPURAM DISTRICT. 2. NEYATHOOR ABOOBACKER,S/O.KUNHARAMU, THOZHUVANOOR AMSOM DESOM,TIRUR TALUK, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33097 of 2009 - O --------------------------------- Dated this the 18th day of November, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.83 of 2005 on the file of the Munsiff Court, Tirur. Suit is one for injunction, both prohibitory and mandatory, and, the respondents are the defendants. Two items of properties are scheduled in the plaint, A & B schedule, both stated to be belonging to the plaintiff. Relief of mandatory injunction was sought for demolition of a brick wall purported to have been constructed by the defendants encroaching upon plaint A schedule property and perpetual prohibitory injunction, restraining the defendants from interfering with the enjoyment of plaint A & B schedule properties of the plaintiff and also from committing any waste in those properties. Defendants filed a written statement resisting the suit claim. On the application moved by the petitioner/plaintiff, an advocate commissioner conducted a local inspection, measured out the suit properties with the assistance of a surveyor and filed a report and plan. Respondents/defendants filed objections to that report and W.P.(C).No.33097 of 2009 - O 2 plan. Learned Munsiff after hearing both sides, according to the learned counsel for the petitioner/plaintiff, upholding the objections raised by the respondents/defendants, remitted the report and plan for further enquiry and filing of a fresh report and plan. Since the previous commissioner had by then ceased to practice, a new advocate commissioner was appointed. After conducting a local inspection the newly appointed advocate commissioner filed a report before the court stating that to carry out the measurement of the suit properties, measurement of adjoining property having an extent of nearly 10 acres is essential, for which he sought orders from the court for getting the aid of a total station machine. Learned Munsiff passed an order for providing the facility sought for by the advocate commissioner directing the petitioner/plaintiff to take necessary steps thereof. Order so passed by the learned Munsiff is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances, I find no notice to the respondents is necessary W.P.(C).No.33097 of 2009 - O 3 and it is dispensed with. 3. The learned counsel for the petitioner/plaintiff submitted that total station machine is only available with the environmental agency and that too at Kozhikode, and without incurring heavy expenditure the facility of providing total station machine as sought for by the commissioner and directed by the court cannot be made available. Learned counsel for the petitioner also raised an apprehension that it may be difficult, and perhaps, impossible without orders of the court to get the total station machine from the environmental agency, even if the plaintiff is prepared to meet the expenses thereof. Without adverting to the question whether the adjoining property has to be measured for fixing the identity of the plaint properties, as suggested by the commissioner, the court below has ordered for providing the commissioner the facility of total station machine, is the further grievance canvassed by the learned counsel for the petitioner/plaintiff. 4. Having regard to the submissions made by the learned counsel for the petitioner/plaintiff with reference to the order passed by the court below and other exhibits tendered in the writ petition, I find this Court in exercise of its visitorial jurisdiction W.P.(C).No.33097 of 2009 - O 4 cannot dwell deep into the objections raised by the petitioner/plaintiff in complying with the direction of the court below for providing the facility of total station machine to the advocate commissioner for measuring out the plaint properties. Petitioner can approach the court below and file a review petition highlighting his grievance, including expenses to be incurred for providing the facility directed and also the difficulty in securing any such facility. In case any such application is moved by the petitioner/plaintiff, needless to point out, the court below shall consider that application on its merits and pass appropriate orders. Subject to the observations made above, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-