IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 WP(C).No. 27228 of 2008(N) ------------------------------------- OS.243/2006 of MUNSIFF COURT, VAIKOM PETITIONER: ------------------ BHASKARAN, AGED 77 YEARS, RESIDING AT MURALEEBHAVAN, FROM VADAKKEPARAMBIL, THOTTAKAM KARA, THALAYAZHAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENTS: ----------------------- 1. KAMALAKSHI, AGED 60 YEARS, W/O.LATE PARAMESWARAN, OTHALATHARA HOUSE, THOTTAKAM KARA, THALAYAZHAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 2. BABURAJ, AGED 38 YEARS, S/O.LATE PARAMESWARAN, OTHALATHARA HOUSE, THOTTAKAM KARA, THALAYAZHAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 3. SANTHA, AGED 41 YEARS, W/O.SOMAN, INCHAKATTIL HOUSE, KONDOOR KARA, ERATTUPETTA VILLAGE, MEENACHIL TALUK, FROM OTHALATHARA HOUSE, THOTTAKAM KARA, THALAYAZHAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 4. REJI, AGED 33 YEARS, S/O.LATE PARAMESWARAN, OTHALATHARA HOUSE, THOTTAKAM KARA, THALAYAZHAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.27228 of 2008 ------------------------------- Dated this the 5th September, 2008. J U D G M E N T Petitioner is the first defendant and respondents the plaintiff in O.S.No.243 of 2006, on the file of Munsiff Court, Vaikom. This petition is filed under Article 227 of Constitution of India challenging Ext.P5 order passed by Munsiff in I.A.No.1549 of 2008, an application filed by the petitioner to advance the hearing of I.A.No.1446 of 2008, an application filed by the petitioner to set aside the report and plan submitted by the Commissioner. According to the petitioner, before recording the evidence, I.A.No.1446 of 2008 is to be heard and an order is to be passed. Learned Munsiff under Ext.P5 order dismissed the application stating that I.A.No.1446 of 2008 would be considered along with the suit, and if on the evidence, it is found that the report is not correct, the Court can call for a proper plan and report. W.P.(C) No.27228 of 2008 2 2. Learned counsel appearing for the petitioner is heard. 3. In view of the order to be passed in this writ petition, I do not find it necessary to issue notice to the respondents, so as to protract the matter or to direct the respondents to appear before the Court. 4. When a petition is filed to set aside the report and plan, before recording the evidence in the suit, Munsiff has to dispose the application. If the report is liable to be set aside, learned Munsiff necessarily has to set aside the report and if not, the application is to be dismissed. Learned Munsiff is not justified in not disposing the application and proceeding the suit. In such circumstances, learned Munsiff is directed to pass orders in I.A.No.1446 of 2008, in accordance with law, after hearing the parties and only after disposing I.A.No.1446 of 2008 to proceed with the suit. M.SASIDHARAN NAMBIAR, JUDGE nj.