IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 28454 of 2009(O) -------------------------- OS.151/2005 of PRINCIPAL MUNSIFF COURT,ALAPPUZHA .................... PETITIONER(S): ------------------------ M/S.EMPIRE COIR WORKS PVT.LTD ALAPPUZHA, REPRESENTED BY ITS DIRECTOR NAVEENCHANDRA UTHAMARAM, AGED 64 YEARS, S/O.UTHAMARAM JADEV, SAKTHI VILAS, BEACH WARD, ALAPPUZHA. BY ADV. MR.B.PRAMOD RESPONDENT(S): --------------------------- 1. BENSIDER CHOTMAL, S/O.CHOTMAL KANDELWAL, AGED ABOUT 62 YEARS, J.P.BUILDINGS, OPPOSITE OF ALAPPUZHA NORTH POLICE STATION, VAZHICHERY WARD, ALAPPUZHA. 2. RAMAKRISHNA CHOTMAL, S/O.CHOTMAL KANDELWAL, AGED ABOUT 45 YEARS,RESIDING AT DO. 3. JUGAL KISHORE CHOTMAL, S/O.CHOTMAL KANDELWAL, AGED ABOUT 50 YEARS,RESIDING AT DO. 4. HARIKRISHNA CHOTMAL, S/O.CHOTMAL KANDELWAL, AGED ABOUT 38 YEARS, RESIDING AT DO. 5. MOUNT CARMAL CATHEEDRAL CHURCH, ALAPPUZHA REPRESENTED BY ITS VICAR FR.PAUL KOCHEEKARAN, AGED 70 YEARS. 6. NAJEEM, AGED 43 YEARS, S/O.ABDULLA, SHIJA MANZIL, P.H.WARD, ALAPPUZHA. 7. SALEEM, AGED 43 YEARS, S/O.RAJ, VADIYIL VEEDU, LAJANATH WARD,ALAPPUZHA. 8. NASAR MOOPPAN, AGED 42 YEARS, S/O.ABDUL KARIM, MATHEVELIYIL, THONDANKULANGARA, ALAPPUZHA. 9. Y.M.SAJID, AGED 25 YEARS, S/O.YAHIYA, THYVELINAKATH, VATTAYAL WARD, ALAPPUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.28454 OF 2009 -------------------------- Dated this the 09th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a direction to the Munsiff Court, Alappuzha to take evidence in the suit numbered as O.S No.151/2005 only after the adjudication of the correctness of Ext.P4 Commissioner's report. ii) Issue a direction to the Munsiff Court, Alappuzha to expeditiously dispose of Ext.P6 I.A and in the event of Ext.P4 report being set aside, appoint a fresh commissioner as sought for by the petitioner. iii) Grant such other reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the case. W.P.(C).No.28454 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No.151 of 2005 on the file of the Munsiff Court, Alappuzha. The grievance espoused by the petitioner is that pursuant to the objections raised by him to the report and plan prepared by the advocate commissioner, the surveyor who prepared the plan was examined. But before completing the enquiry on the merit of the commission application, the court has posted the case for recording evidence. Petitioner seeks issue of directions/orders to the court below for considering Ext.P6 application moved for setting aside the commission report and plan and collecting a fresh report and plan. 3. Having regard to the submissions made by the learned counsel for the petitioner and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. It is open to the petitioner to move the court below to seek W.P.(C).No.28454 OF 2009 Page numbers appropriate directions/orders for consideration of Ext.P6 application before proceeding with the recording of evidence in the case. However, I make it clear that it is for the court to decide whether the enquiry on Ext.P6 application is to be considered with the trial of the suit. The normal rule is to consider the application challenging the commission report in the trial of the suit so that disposal of the suit is not delayed due to enquiries on interlocutory applications. Whether the enquiry on the merit of the commission report is conducted at the trial of the suit, or before, needless to point out that if the court finds that the report suffers from any infirmity, appropriate orders over the report,in accordance with law, have to be passed to render justice to the parties. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, //TRUE COPY// JUDGE vdv P.A TO JUDGE