IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 24522 of 2009(O) -------------------------- OS.108/2006 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- PULLOLICKAL CHACKO, AGED 78 YEARS, S/O.CHACKO, CHUNDA P.O., VAYAKKARA AMSOM, PULINGOME DESOM, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT(S): --------------- 1. PODIMATTOM JOSE, S/O.JOSEPH, AGED 50 YEARS, KOLUVALLY, P.O.CHUNDA, CHERUPUZHA. 2. ELILYAMMA CHERIYAN MERCHANT, W/O.CHERIYAN, P.O.CHUNDA, CHERUPUZHA, KANNUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.24522 OF 2009 () ----------------------------------- Dated this the 26th day of August, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to set aside the Ext.P6 order passed by the Munsiff Court, Payyannur in I.A.No.779 of 2009 in O.S.No.108 of 2006 dated 29.7.2009. ii. to issue a writ of mandamus directing the Munsiff Court, Payannur to allow Ext.P4 application filed by the petitioner to remit back the commission report before proceeding with the trial of the suit; 2. Petitioner is the plaintiff in O.S.No.108 of 2006 on the file of the Munsiff Court, Payyannur. Suit is for permanent prohibitory injunction, and the respondents are the defendants. At the instance of the plaintiff, an advocate WPC.24522/09 2 commissioner was deputed to conduct local inspection and measure out the property with the assistance of a surveyor. Commissioner after such inspection, filed a report and plan. Exts.P3 and P3 (a) are the report and plan respectively. Plaintiff had serious objections to the report. He filed Ext.P4 application for remitting the report to cure the infirmities. The learned Munsiff, after hearing both sides, declined the request of the plaintiff vide Ext.P6 order, holding that, if any clarification is necessary, it can be done by examining the Commissioner. Propriety and correctness of Ext.P6 order is challenged in the 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 petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. I find no impropriety or illegality in the order passed by the learned Munsiff declining the request of the petitioner/plaintiff to remit the report. However, the WPC.24522/09 3 observations made by the court below that the infirmity, if any, pointed out can be clarified at the time of examination of the commissioner appears to be not correct. I direct the learned Munsiff to extend an opportunity to the petitioner/plaintiff to examine the commissioner and also the surveyor at the time of trial, provided, steps are taken in time to substantiate his objections to the commission report and plan. In case, the court finds on such examination of the commissioner and surveyor, that the report suffers from serious infirmities, appropriate orders have to be passed with respect to the acceptability of that report. Ext.P6 order will not stand in the way of the court passing appropriate orders thereof. Subject to the above observations and reserving the right of the petitioner to take appropriate steps for examination of the commissioner and surveyor at the time of trial, writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp