IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 2914 of 2009(V) ------------------------------------------- IA.8054/2008 IN OS.499/2006 of II ADDL.M.C., TRIVANDRUM .................... PETITIONER: I.SYAMKUMAR, S/O.KRISHNAN NAIR FROM TC 42/1, SOUPARNIKA, SREEVARAHAM, THIRUVANANTHAPURAM AND NOW RESIDING AT PN-40, AYIROOR KOYIKKAL, 3RD CROSS ROAD, PARAMBIL NAGAR, SREEVARAHAM, VALLAKADAVU PO, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH RESPONDENT: B.S.JAYASREE, D/O.BAGEERATHY AMMA, ANUGRAHA, KOCHEEKAL COMPLEX, PATTOM, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.2914 of 2009 V -------------------------- JUDGMENT Petitioner is the defendant in O.S.No.499/06 on the file of the II Additional Munsiff's Court, Thiruvananthapuram. The suit, inter alia, is one for putting up of boundary. The respondent/ plaintiff applied for a commission and accordingly, Exhibit P8 commission order was issued on 10.10.2008. The Commissioner so appointed filed Exhibit P8 commission report on 25.10.2008. 2. It is submitted that on 23.9.2008, the petitioner/defendant also filed a commission application, evidenced by Exhibit P6, but that, on the petitioner/plaintiff praying for adjournment to file objection, it was adjourned to 25.10.2008, on which day, the Commissioner appointed on the application of the respondent/plaintiff filed Exhibit P8 commission report. The court below dismissed Exhibit P6 application for the reason that there is already a commission report and a WPC 2914/09 2 fresh commission can be issued only in the event of that commission report being set aside. 3. It is contended before me by the learned counsel for the petitioner/defendant that Exhibit P6 commission application was made by the petitioner only for ascertaining some more details while deputing a Commissioner on the respondent/ plaintiff's application and that the court below, has, however posted the application from 23.9.2008 to 25.10.2008 and in the meanwhile, certain holidays intervened and the respondent/plaintiff took the Commissioner for inspection of the property and caused report to be filed on 25.10.2008 and that was how the matters asked for to be got ascertained vide Exhibit P6 application could not be ascertained and that it is not as if the court below has observed that Exhibit P6 application, though filed on 25.9.2008, was not accompanied by an advance petition, as the petition had come before court on 25.9.2008 and on the WPC 2914/09 3 request of the respondent/plaintiff for time to file objection, it was being adjourned to 25.10.2008. 4. Counsel for the petitioner/defendant submits that the report obtained is not as per the survey plan; that the properties of the respondent/ plaintiff and petitioner/defendant are entirely in two different sub division numbers of the same survey number; that boundary can be fixed if the boundary line is fixed as per the sub division sketch and that in the absence of such a plan, it will not be possible to fix the proper boundary. In the circumstances stated, I am not of the view that trial of the suit should proceed without commission report being obtained ascertaining also the details called for on the petitioner/defendant's application filed on 23.9.2008. 5. In the result, even without notice to the respondent/plaintiff, I set aside Exhibit P9 order and remit the case back to the trial court with a WPC 2914/09 4 direction to remit the commission report back to the Commissioner to ascertain also the details asked for in Exhibit P6 commission application filed by the petitioner/defendant. Petitioner is directed to produce a copy of this judgment in the court below forthwith with notice to the counsel for the respondent/plaintiff, as this writ petition is being disposed of without notice to the respondent/plaintiff. This writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. 30th January, 2009 (K.P.Balachandran, Judge) tkv