IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 15998 of 2009(O) -------------------------- AGAINST THE ORDER IN IA NOS. 191 & 193/2009 IN I.A.NO.8/2008 IN OS.63/2006 of MUNSIFF MAGISTRATE COURT,PATTAMBI .................... PETITIONER(S): ------------------------ VENUGOPALAN, S/O. SUBHADRA AMMA, 34 YEARS, KEZHAKKAMPATTU PADINJARETHIL, PERUMUDIYUR AMSOM AND DESOM, OTTAPALAM TALUK. BY ADVS. SMT.T.D.RAJALAKSHMI, MR.R.SREEHARI. RESPONDENT(S): -------------------------- 1. ITTICHIRI @ KUTTIMALU AMMA, D/O.LAKSHMI AMMA 2. RUGMINI AMMA, D/O.ITTICHIRI @ KUTTIMALU AMMA 3. RADHAKRISHNAN, S/O........DO........ 4. RAMACHANDRAN, S/O.........DO......... 5. VENUGOPALAN, S/O.............DO.......... 6. PADMINI AMMA, D/O.............DO........... 7. PREMALATHA, D/O...............DO............ 8. SREEKUMAR, S/O. RUGMINI AMMA 9. USHA KUMARI, D/O. RUGMINI AMMA 10. RAJASHREE, D/O. RUGMINI AMMA, ALL RESIDING AT KEZHAKKAMPATTU PADINJARETHIL HOUSE, PERUMUDIYUR AMSOM AND DESOM, OTTAPALAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.15998 OF 2009 (O) ----------------------------------- Dated this the 10th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to passing of Ext.P14 and P15 orders passed in I.A.193/2009 and I.A.191/2009 in I.A.8/2008 in O.S.No.63 of 2006 dated 7.4.2009 of Munsiff Magistrate Court, Pattambi and set aside the same; ii) to issue a writ of mandamus or other appropriate writ, order or direction, directing the Munsiff Magistrate Court, Pattambi to allow I.A.No.913/09 and I.A.191/09 in I.A.8/2008 in O.S.63 of 2006 as evidenced by Ext.P10 and P12 and appoint a fresh Commissioner in I.A.8 of 2008; iii) to grant such other reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioner is the 6th defendant in O.S.No.63/2006 on WPC.15998/09 2 the file of the Munsiff Magistrate Court, Pattambi. Suit was one for partition in which a decree was passed allotting the plaintiffs 10/18 shares in the suit properties. The house situated in the plaint schedule property was ordered to be reserved for defendants 1 to 6 and the 10th defendant, without valuation. The decree further declared that defendants 7 to 9 are jointly entitled to get one share out of the 18 shares. Admittedly, now the final decree proceedings are in progress. An application was moved by the plaintiffs to appoint a Commission and an Advocate Commissioner was appointed by the court to measure the suit properties and file a report. The present petitioner, who is stated to have filed a work memo before the Commissioner, filed objections to the report contending that the points to be noted by him have not been noted and the report prepared by the Commissioner suffers from serious infirmities. The petitioner applied for setting aside that report and sketch prepared by the Commissioner, to which the 2nd plaintiff filed a counter. The learned Munsiff conducted an enquiry over the objections raised by the petitioner on the report and sketch prepared and produced, in WPC.15998/09 3 which the Commissioner was examined as PW1 and his report and sketch were exhibited in evidence as Exts.C1 and C2. Pursuant to the enquiry and after hearing the parties, the learned Munsiff came to the conclusion that the objections raised by the 6th defendant against the report and sketch are not well founded and Ext.P14 order was passed overruling the objections. The 6th defendant has also moved another application for appointment of a fresh Commission to prepare a new report and plan, which was also dismissed by the learned Munsiff in the light of Ext.P14 order. Ext.P15 is the copy of that order. Challenging the propriety and correctness of Exts.P14 and P15 orders, the 6th defendant has filed this writ petition seeking the aforementioned reliefs invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Objections raised by the 6th defendant to the Commission report and plan are reiterated by the learned counsel before me to show that Exts.P14 and P15 orders passed by the WPC.15998/09 4 learned Munsiff are incorrect and they cannot be sustained. I do not agree. Petitioner has an alternate efficacious remedy of challenging the final decree, if any, passed in the proceedings and in that proceedings, naturally he will get the right to challenge a Commission report and plan if it suffers from any infirmity. Writ jurisdiction of this Court under Article 227 of the Constitution of India cannot be exercised to examine the correctness of a Commission report and plan prepared in a final decree proceedings especially where the order passed by the learned Munsiff, Ext.P14 is seen to be free from any infirmity. Writ petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009