IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WP(C).No. 6512 of 2010(O) -------------------------------------- OS.197/2006 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): ----------------------- M. ABDURU, S/O.KHADER, MOOKANATT PARAMBIL HOUSE, NIRAMARUTHOOR (PO), TIRUR TALUK, MALAPPURAM DIST. BY ADV. MR.JAMSHEED HAFIZ RESPONDENT(S): ------------------------- PULIKKALAKATH ABUBACKER, S/O.NOT KNOWN, NADUVILANGADI (PO), POOKAYIL BAZAR, TIRUR TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- WP(C) No.6512 of 2010-O ------------------------------------- Dated 1st March 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the petitioner calls in question Ext.P5 order, whereby, the Court below has declined the prayer of the petitioner to remit the Commissioner's report. 2. The petitioner instituted a suit as OS No.197/2006 before the Munsiff's Court, Tirur. The suit was one for mandatory injunction and permanent prohibitory injunction. A copy of the plaint is produced as Ext.P1. 3. According to the plaintiff, there is a brooklet which passes through the eastern side of the plaint schedule property. Further east to this brooklet, lies the defendant's property. The allegation is that the defendant started to construct a wall on the western side of the property, encroaching into the brooklet. On the motion made by the plaintiff, a Commissioner was appointed to inspect the property and he has filed Ext.P3 report and a rough sketch of the property. According to the plaintiff, the Commissioner had not adverted to the detailed report with the aid of the Taluk Surveyor. So, the plaintiff filed an application to set aside the Commissioner's WPC 6512/10 2 report and to appoint a fresh commission. But, the Court below rejected the said application by Ext.P5 order, holding that the necessity for setting aside the Commissioner's report could be decided at the time of hearing the suit. The petitioner has filed this Writ Petition, challenging Ext.P5. 4. As could be seen from the records, the Commissioner has inspected the property and submitted Ext.P3 report and sketch on the basis of the work memo then provided to him. It is significant to notice that the suit was once listed on 22.09.09 on which date, the petitioner was absent and accordingly the suit was dismissed. At that time, he did not feel it necessary to have the property inspected by the Taluk Surveyor and only when the suit was again listed for trial, he moved an application for setting aside the Commissioner's report. It is pointed out by the learned counsel for the petitioner that a Surveyor has already been appointed. 5. Whatever that be, the Court below has held that whether the Commissioner's report should be set aside or not, will be decided at the time of hearing the suit. During trial, if it is found that the Commissioner's report and plan now available are not helpful to the petitioner, he may move an application for appointment of a fresh Commission. In that event, the Court below shall consider and pass appropriate orders thereon in accordance with law as expeditiously WPC 6512/10 3 as possible. The Writ Petition is disposed of as above. P.BHAVADASAN, JUDGE sta WPC 6512/10 4