IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 11870 of 2010(O) -------------------------- OS.130/2009 of ADDL.MUNSIFF, KASARAGOD .................... PETITIONER(S): --------------- THE PEOPLE'S ARTS AND SCIENCE COLLEGE, MUNNAD, REPRESENTED BY ITS SECRETARY SUNIL KUMAR. BY ADV. SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER SRI.P.P.RAMACHANDRAN RESPONDENT(S): --------------- 1. KAMALAKSHI AMMA, W/O. LATE MADHAVAN NAIR MARUTHELAM, MUNNAD, KASARAGOD. 2. P.RAGHAVAN, PRESIDENT, PEOPLE'S ARTS AND SCIENCE COLLEGE, MUNNAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------- W.P (C) No.11870 of 2010 -------------------------- Dated this the 6th April, 2010 J U D G M E N T In this writ petition under Article 227 of the Constitution of India, the following reliefs are sought for by the petitioner: "(i) Pleased to pass an interim order directing the Munsiff Court, Kasargod to depute another Advocate Commissioner to inspect and submit a report touching the matters mentioned in I.A No.268/2010 and I.A No.662/2010; (ii) Pleased to stay all further proceedings in O.S No.130/09 on the file of the Additional Munsiff Court, Kasargod pending disposal of the writ petition" 2. Petitioner is the 1st defendant in O.S No.130/2009 pending before the Munsiff Court, Kasargod. The suit was in respect of a way said to have been obstructed by the 2nd defendant. According to the plaintiff, plaint B schedule property lies in the puramboke land. Plaintiff had taken out Commission and Commissioner had filed a report along with a sketch before the trial court. Report of the Commissioner shows that W.P (C) No.11870 of 2010 2 there is a way connecting the plaint A schedule property owned by the plaintiff. 3. Defendant in the court below filed Exts.P4 and P5 applications to set aside the Commissioner's report alleging that the Commissioner has reported wrong facts and no road in existence as mentioned by the Commissioner. Thereafter, petitioner filed I.A No.662/2010 seeking to depute another Advocate Commissioner. The court dismissed I.A No.662/2010 by order dated 19.3.2010. The main reason mentioned in the impugned order is that a second Commission cannot be issued without setting aside the first report. 4. It is well settled that when a Commission report is filed, unless that commission report is set aside a second commission cannot be appointed. Commission in this case rightly or wrongly has reported that there is a way as shown in B schedule to the plaint. Now the attempt of the petitioner herein by filing present application before the court below is to show that earlier report is wrong. That cannot be permitted. It is true that there is an W.P (C) No.11870 of 2010 3 allegation that new road has been laid. If the case of the petitioner is that there has been alteration of the earlier existing way they should have sought to have the commission report remitted and such report about additional facts. That was not the attempt of the petitioner in this case. At any rate, the petitioner cannot take another commission to show that earlier commission report is wrong. It is not permissible in law. 5. Learned counsel for the petitioner pointed out that Ext.P5 application has been filed before the court below to set aside the commission report. The complaint of the petitioner is that, that is not being disposed of. Therefore, a direction may be issued to the court below to dispose of that application, at the earliest. 6. It is true that the petitioner has a case that there is no road in existence. It is stated that plaint B schedule property lies in the puramboke land. Whatever that may be, the request made by the leaned counsel for the petitioner for a direction to the dispose of Ext.P5 application seems reasonable. W.P (C) No.11870 of 2010 4 7. In the result, confirming the impugned order of the court below, the court below is directed to take up I.A.268/2010 (Ext.P5) in O.S No.130/2009 and dispose it of, within one month from the date of re-opening of the courts after summer vacation. If the petitioner succeeds in establishing the earlier commission report is wrong , the petitioner will have the liberty to take out fresh commission. With the above observations, the writ petition is disposed of. P.BHAVADASAN, JUDGE ma W.P (C) No.11870 of 2010 5 W.P (C) No.11870 of 2010 6