IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 899 of 2009(F) ------------------------ OS.220/2007 of ADDL.M.C.,KOZHIKODE-I .................... PETITIONER(S): ------------------------ 1. SUKUMARAN NAIR, S/O. CHINNAMMA, MUTHIRAKKALAYIL VEETTIL, NADUVALLOOR AMSOM, DESOM, KOZHIKODE TALUK. 2. PADMAVATHI AMMA, W/O.SUKUMARAN NAIR, MUTHIRAKKALAYIL VEETTIL, NADUVALLOOR AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. MR.K.A.SALIL NARAYANAN RESPONDENT(S): ---------------------------- 1. V.C.UDAYAKUMARAN NAIR, S/O. CHAPPUNNI NAIR, VETTUVOTT VEETTIL, NADUVALLOOR AMSOM, DESOM, KOZHIKODE TALUK. 2. V.C.ARAVINDAKSHAN NAIR, S/O.CHAPPUNNI NAIR, VETTUVOTT VEETTIL, NADUVALLOOR AMSOM, DESOM, KOZHIKODE TALUK. 3. VADAKKAYIL RADHAKRISHNAN NAIR, S/O.KUTTAPPAN NAIR, VADAKKAYIL HOUSE, NADUVALLOOR AMSOM, DESOM, KOZHIKODE TALUK. 4. PUTHIYOTH MADHUSUDANAN, S/O.DEVIYAMMA, NADUVALLOOR AMSOM, DESOM, KOZHIKODE TALUK. BY ADVS. MR.T.R.RAVI, MR.P.S.MURALI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.899/2009 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.220/07 BEFORE THE COURT OF ADDITIONAL MUNSIFF, KOZHIKODE – 1. P2: COPY OF THE WORK MEMO SUBMITTED BY THE PETITIONER SHOWING THE POINTS TO BE NOTED BY THE COMMISSIONER DURING HIS LOCAL INSPECTION. P3: COPY OF THE COMMISSION REPORT AND PLAN. P4: COPY OF THE OBJECTIONS MADE BY THE PETITIONER FOR SETTING ASIDE COMMISSION REPORT AND PLAN. P5: COPY OF THE ORDER IN I.A.3196/2008 IN O.S.220/07 OF THE COURT OF ADDITIONAL MUNSIFF-I, KOZHIKODE (ORDER CHALLENGED). RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.899 OF 2009 (F) ----------------------------------- Dated this the 21st day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for the records leading to Ext.P5 order, set aside the same, and, thereafter, allow the application as prayed for. ii. to issue such other writ, order or direction which this Honourable Court may deem fit and proper to grant in the facts and circumstances of the case. 2. Petitioners are the plaintiffs in O.S.No.220 of 2007 on the file of the Additional Munsiff Court-I, Kozhikode. Suit is one for recovery of possession, and the respondents are the defendants. In the suit, the plaintiffs filed an application for appointment of an advocate commissioner to measure out the property. That being allowed, an advocate commissioner inspected the property, carried out the measurement and WPC.899/09 2 prepared a report and plan with the assistance of a surveyor. Plaintiffs raised serious objections to the report and plan. The learned Munsiff, after hearing both sides, negatived the objections raised by the plaintiffs under Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. At the time of hearing, it is submitted that the trial of the case has already commenced and the commissioner has been examined as CW1. Having regard to the submissions made and perusing Ext.P5 order, I find that the objections raised by the plaintiffs with respect to the commission report has to be appreciated in the light of the evidence that has been brought in by examining the commissioner. After such appreciation, if the court finds that setting aside or remitting of the commission report is required, I make it clear that Ext.P5 order will not stand in the way of the court passing appropriate orders thereof. If the report is found acceptable after such WPC.899/09 3 appreciation of the evidence of the commissioner, the court may proceed with the trial of the suit, and dispose it in accordance with law. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp