IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 13066 of 2010(O) -------------------------- OS.207/2006 of MUNSIFF COURT, PUNALUR .................... PETITIONER: --------------- SASANKAN B., 'SASANKA BHAVAN', MANIYAR P.O., PUNALUR, KOLLAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: --------------- 1. R.BALAKRISHNAN ACHARI, CHARUVILA PUTHENVEEDU, PUTHAYAM, MANIYAR P.O., PUNALUR. 2. B.SASIDHARAN, OF DO. DO. ADV. SRI. K.SHAJ FOR R1 & 2 SRI.SAJJU.S FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13066 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT, O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR DTD. 12.07.2006 EXHIBIT P2 : WRITTEN STATEMENT ALONG WITH A COUNTER CLAIM DTD. 03.08.2006 O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P3 : APPLICATION DTD. 17.10.2009 O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P4 : COMMISSIONER'S REPORT DTD. 29.06.2009 IN O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P5 : APPLICATION, I.A.2408 OF 2009 DTD. 28.10.2009 IN O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P6 : APPLICATION, I.A.2410OF 2009 DTD. 28.10.2009 IN O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P7 : ORDER DTD. 02.02.2010 IN I.A.2408 OF 2009 DTD. 28.10.2009 IN O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR EXHIBIT P8 : ORDER DTD. 02.02.2010 IN I.A.2410OF 2009 DTD. 28.10.2009 IN O.S.NO.207/06 BEFORE THE MUNSIFF'S COURT, PUNALUR RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.13066 of 2010 --------------------------------------- Dated this 14th day of July, 2010 JUDGMENT Defendant No.2 in O.S.No.207 of 2006 of the court of learned Munsiff, Punalur has filed this writ petition on behalf of other contesting defendants also challenging Exts.P7 and P8 orders. Respondent No.1/plaintiff filed the suit for fixation of boundary and for consequential reliefs. Ext.P1 is the plaint and Ext.P2 is the written statement filed by petitioner and other defendants. Respondent No.1 wanted the Advocate Commissioner to inspect the property and identify the same with assistance of a Surveyor. Respondent No.1 suggested the names of two surveyors to assist the Advocate Commissioner. Learned Munsiff appointed Advocate Commissioner and Surveyor who submitted Ext.P4, report and plan. Defendant No.1 filed Ext.P5, application to set aside Ext.P4 report stating about serious irregularities and inadequacies in the report. In the meantime based on Ext.P4, report respondent No.1 filed I.A.No.2410 of 2009 to amend the plaint to incorporate a prayer for recovery of possession. Learned Munsiff vide Ext.P7, order on I.A.No.2408 of 2009 directed that the said application to set aside Ext.P4, report be posted along W.P.C.No.13066 of 2010 : 2 : with suit but at the same time, allowed I.A.No.2410 of 2009 for amendment of plaint vide Ext.P8, order. Hence this writ petition. Learned counsel for petitioner contends that serious objections are raised to the report and plan submitted by Advocate Commissioner and it was necessary to consider the same before parties went to trial. It is also contended by learned counsel that since I.A.No.2410 of 2009 for amendment of plaint is based on Ext.P4, report and plan court below went wrong in permitting respondent No.1 to amend plaint before deciding upon objection to Ext.P1, report and plan. According to respondent No.1, there is no reason to interfere with Exts.P7 and P8. 2. As per Ext.P7, order I.A.No.2410 of 2009 was posted along with the suit. Learned Munsiff was required to consider objection raised and in case the report and plan are wanting in sufficient datas or there are inadequacies or irregularities as contended by defendant No.1, necessarily the report and plan had to be set aside or remitted to the Advocate Commissioner to get further datas in the matter. In the circumstances learned Munsiff was not correct in allowing I.A.No.2410 of 2009 while it directed that objection to the report and plan will be heard along with the suit. 3. Having regard to the facts and circumstances, I am not inclined to uphold Ext.P7, order but it is not necessary to interfere with Ext.P8, order for the time being and it is sufficient W.P.C.No.13066 of 2010 : 3 : that Ext.P8, order is made subject to result of the application preferred by defendant No.1 to set aside Ext.P4, report. I make it clear that in case the report and plan are set aside or remitted and fresh report and plan are obtained, it will be open to respondent No.1 to seek appropriate amendment of plaint based on such report and plan, if required. Resultantly this writ petition is allowed in the following lines: (i) Ext.P7, order on I.A.No.2408 of 2009 in O.S.No.207 of 2006 is set aside. (ii) Learned Munsiff is directed to consider I.A.No.2408 of 2009 and pass appropriate orders before parties go for trial. (iii) It is made clear that Ext.P8, order will be subject to the decision on I.A.No.2408 of 2009 and in case the report and plan are set aside or remitted to the Advocate Commissioner and fresh report and plan are obtained it will be open to the respondent No.1 to seek suitable amendment of plaint as is required and warranted by circumstances. (iv) Learned Munsiff is directed to dispose of I.A.No.2408 of 2009 as expeditiously as possible considering the fact that suit is of the year 2006. (THOMAS P JOSEPH, JUDGE) Sbna/-