IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 21506 of 2009(O) -------------------------- I.A.NO.4037/08 & I.A.1336/09 IN OS.529/2004 of PRL.M.C.,IRINJALAKUDA .................... PETITIONER(S): --------------- AJITHA, W/O.ITTIKKAPARAMBIL SASIDHARAN, EDATHIRINJI DESOM/VILLAGE/PO THRISSUR DT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): --------------- 1. NARAYANAN NAIR, S/O.KURIYAKKATTIL LAKSHMIKUTTY AMMA, EDATHIRINJI DESOM/VILLAGE/PO, THRISSUR DT. 2. MANI, S/O.KUNJILIKKATTIL VELAYI, EDATHIRINJI DESOM/VILLAGE/PO, THRISSUR DT. 3. BHARATHI AMMA, W/O.KURIYAKKATTIL SANKARAN, EDATHIRINJI DESOM/VILLAGE/PO, THRISSUR DT. ADV. SRI.V.BINOY RAM FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.21506/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPORT AND PLAN IN THE COURT BELOW. EXT.P2: COPY OF OBJECTION FILED BY THE RESPONDENTS. EXT.P3: COPY OF I.A.4037/2008 TO REMIT THE REPORT. EXT.P4: COPY OF OBJECTIONS FILED BY RESPONDENTS. EXT.P5: COPY OF I.A.1336/08 EXT.P6: COPY OF OBJECTIONS FILED BY RESPONDENTS. EXT.P7: COPY OF ORDER DATED 18.6.2009 ON EXT.P3 EXT.P8: COPY OF ORDER DATED 18.6.2009 ON EXT.P5 /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.21506 OF 2009 (O) ----------------------------------- Dated this the 13th 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 Exts.P7 and P8 and quash the same by a writ of certiorari or such other writ, order or direction as this Honourable Court may deem fit and direct the court below to consider the same afresh, ii. to grant an interim order staying trial of O.S.No.529/2004 in the court below pending disposal of this writ petition. iii. to grant the costs of the petitioner and iv. to issue such other and further relief as this Honourable Court may deem fit in the circumstances of the case and in the interest of justice. 2. Petitioner is the 1st plaintiff in O.S.No.529 of 2004 on the file of the Munsiff's Court, Irinjalakkuda. Suit is one for recovery of possession and fixation of boundary and the WPC.21506/09 2 respondents are the defendants in the suit. Petitioner moved an application for remitting the commission report and plan prepared and filed in the suit. The learned Munsiff, after hearing both sides, dismissed that application. Ext.P7 is the copy of that order. Impeaching the propriety and correctness of Ext.P7 order, the writ petition is filed invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. From the submissions made, it is seen that already a report and plan prepared by an advocate commissioner with the assistance of a surveyor are before the court. Plaintiff sought for determination of some more points relating to 'E' schedule, which is described as having an extent of 8.63 cents, the area alleged to have been trespassed upon by the defendants. The commissioner who prepared and filed the earlier report and plan was deputed for the purpose and he reported that the 'E' schedule items cannot be determined. The report so filed by him was objected to by the plaintiff and she sought for remitting that report for reconsidering the points placed in WPC.21506/09 3 her previous petition. The learned Munsiff, after hearing both sides, found that there is no merit in the application moved by the plaintiff for remission of the report and plan, and accordingly, Ext.P7 order was passed. In the application moved by the plaintiff, the area alleged to have been trespassed upon by the defendants alone was sought for determination for fixation of the boundary with the defendants. Having regard to the fact that there is already a report and plan prepared by the commissioner in which whatever points sought for by the plaintiff were also considered determination of the trespassed area on the basis of a subsequent application moved by the plaintiff cannot be allowed. Validity of the previous report and plan prepared by the commissioner which forms part of the record have to be considered and, then, only the question of sending out a commissioner again will arise for consideration. Suit filed in 2004 continues to be on the file of the court in view of the applications moved one after the other deputing the commissioner to conduct local inspection and file report despite the fact that an earlier report filed with survey measurement and plan prepared with the assistance of a WPC.21506/09 4 surveyor is on the file and the merit of it is yet to be considered by the court. Report and plan already on the file of the court have to be considered at the trial of the suit, and in case it suffers from any serious infirmity, appropriate orders have to be passed at that stage. 3. It is reported that the trial of the case which has already been included in the list now stands adjourned to tomorrow, without removal from the list. The learned counsel for the petitioner/plaintiff seeks a breathing time for commencement of the trial. I direct the learned Munsiff to post the case for trial without removing it from the list after one week. With the above directions, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp