IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 WP(C).No. 2576 of 2008(F) --------------------------------------- PETITIONER:DEFENDANT NO.2: ----------------------------------------------- STEPHEN THOMAS, S/O.LATE KUNJAMMA THOMAS, VALIYAKALATHIL HOUSE, KUZHUVELIPURAM MURI, PERINGARA VILLAGE. BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS: ADDITIONAL PLAINTIFF NO.2 AND DEFENDANTS 3,4,5&6: ------------------------------------------------------------------------------------------------------------- 1. CHERIYAN V.ABRAHAM, S/O.ABRAHAM CHERIYAN, VALIYAKALATHIL HOUSE, KUZHUVELIPURAM MURI, PERINGARA VILLAGE. 2. CHECHAMMA THOMAS, VALIYAKALATHIL HOUSE, KUZHUVELIPURAM MURI, PERINGARA VILLAGE. 3. REENA THOMAS, KRISHNA NIVAS, MAVLING TAD, SANGUELIN P.O., GOA – 403 503. 4. RAJAMMA THOMAS. VALIYAKALATHIL HOUSE, CHAKKALACKAL ROAD, PERUMANOOR P.O., THEVARA, ERNAKULAM. 5. NISHA PAUL (MINOR), VALIYAKALATHIL HOUSE, CHAKKALACKAL ROAD, PERUMANOOR P.O., THEVARA, ERNAKULAM, REPRESENTED BY HER MOTHER AND GUARIDAN RESPONDENT NO.4 SMT. RAJAMMA THOMAS. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 2576 OF 2008 --------------------- Dated this the 22nd day of January, 2008 JUDGMENT This writ petition is filed against the common order passed in IA No.1108/2007 and IA No.2826/07 in OS No.698/1999. Both these applications were filed by the plaintiff and defendants in the suit for setting aside the Commissioner's plan and report. The court below recorded the submission made by the plaintiff and the defendants that “it is necessary to appoint a new commissioner and surveyor, since both sides are seeking to set aside the same relief”. On that basis, the court below appointed a new Commissioner with a direction to the parties to pay batta etc. Aggrieved by that decision, the 2nd defendant in the suit has come forward with this petition, challenging the order of the court below. 2. Learned counsel very persuasively submits before me that it was incumbent upon the court to have considered the matter on merits and further that the 2nd defendant has not consented to for such an order. The Apex court has made it very clear that when an order is passed on the basis of consent and if there is any challenge WPC NO 2576/08 2 regarding the consent, the proper remedy for the party is to approach that court itself with a petition to review that order. Therefore, I direct the present petitioner/2nd defendant to file the required application before the court below for ventilating his grievance and thereafter the court shall pass appropriate orders. I also direct the court below to pass a proper order regarding what has to be done with the previous Commissioner's plan and report, which is totally silent in the present order and after hearing both sides, the matter be disposed of. Till a new Commissioner is appointed in the suit, the new Commissioner is directed to defer his visit. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 2576/08 3