IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 37596 of 2008(A) -------------------------- AS.106/2005 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- ABHILASH, S/O.LATE M.R.PANKAJAKSHAN NAIR 'MADAMPILLI CHITRA'ONAMPILLI, EDAVOOR P.O. PERUMBAVOOR, ERNAKULAM DIST. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------- 1. JACOB MATHEW, S/O. K.T.MATHAN, HOUSE NO. 22, NV NAGAR, PEROORKADA, THIRUVANANTHAPURAM. 2. LEELA P. NAIR, W/O. LATE M.R. PANKAJAKSHAN NAIR, 'MADAMPILLI CHITRA' ONAMPILLI EDAVOOR P.O. PERUMBAVOOR, ERNAKULAM DIST. 3. ANUPAMA NAIR, D/O. LATE M.R.PANKAJAKSHAN NAIR 'MADAMPILLI CHITRA'ONAMPILI, EDAVOOR P.O. PERUMBAVOOR, ERNAKULAM DIST. ADV. SMT.S.MUMTAZ FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE ORDER DATED 21-6-2008 IN I.A.NO.5099/2006 IN A.S.NO.106/2005 OF THE SUB COURT, THIRUVANANTHAPURAM /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.37596 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2009 JUDGMENT This writ petition is filed by the plaintiff in O.S.No.319/2000 of II Additional Munsiff Court, Thiruvananthapuram and appellant in A.S.No.106/2005 of First Additional Sub Court, Thiruvananthapuram under Article 226 and 227 of the Constitution seeking to quash Ext.P1 order passed by the lower appellate court. 2. The suit was for permitting the plaintiff to complete the construction of his compound wall and to realise half of the costs from the defendants. Defendants in the suit who the respondents in this writ petition contested the suit and made a counter claim and requested for a mandatory injunction against the plaintiff to construct granite wall on the granite foundation connecting original boundary line. The plaintiff filed a replication stating that as agreed between the plaintiff and the defendant, he had constructed the present compound wall at a level of 3 feet width. The lower court dismissed the suit and allowed the counter claim made by the defendants. As against this plaintiff filed appeal WPC.No.37596/08 Page numbers before the lower appellate court as A.S.No.106/2005. In the appeal, the plaintiff filed I.A.No.5099/2006 for issuing a commission to measure the properties with the help of a private surveyor which was allowed by the lower appellate court. When the commissioner visited the spot, both the plaintiff and the surveyor were absent. Therefore, he filed an interim report to appoint another surveyor for measuring the properties. But the lower court suo motu reviewed the earlier order allowing the application for issuance of commission and dismissed that petition. Now the plaintiff has challenged the said Ext.P1 order dated 21-06-2008 in this writ petition. 3. The original plaintiff died now. His legal heirs are on record. Counsel for the petitioner submitted that as the original plaintiff was laid up, he was not able to be present at the time when the Commissioner visited the property. The order of the lower appellate court is clearly illegal . Power under review can be exercised only if there is grave error or mistake in the earlier order passed by it. There is no such error or illegality in the earlier order of the lower appellate court allowing the application for WPC.No.37596/08 Page numbers issuance of a commission. At the most, the lower appellate court can recall the warrant issued to the commissioner. Therefore, I am inclined to set aside the impugned order of the lower appellate court dated 21-06-2008 in I.A.No.5099/2006 in A.S.No.106/2005. The lower appellate court is directed to appoint the same surveyor or another surveyor from the list furnished by the plaintiff to inspect the properties. The writ petitioner is directed to co-operate with the commission for measuring the properties. The lower court is directed to dispose of the appeal as early as possible after receipt of the report of the Commissioner. P.Q.BARKATH ALI JUDGE sv. WPC.No.37596/08 Page numbers