IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 WP(C).No. 34376 of 2009(O) -------------------------- OS.107/2000 of MUNSIFF COURT, PEERUMEDU .................... PETITIONER: --------------- M.M.J.PLANTATIONS, A FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP ACT, WITH ITS REGISTERED OFFICE AT MANARCAT BLDGS.,PALA, LALAM VILLAGE,MEENACHIL TALUK,REP.BY ITS GENERAL MANAGER AND PARTNER M.MICHAEL,59 YRS,S/O.LATE M.MICHAEL, RESIDING AT BON-AMI TEA GARDEN,BON-AMI KARA,ELAPPARA VILLAGE,PEERMADE TALUK,IDUKKI DISTRICT. BY ADV. SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH RESPONDENTS: --------------- 1. OOMMEN VARGHESE, S/O.VARGHESE, KIZHAKKENILACKAL HOUSE, BON-AMI ESTATE, FAIRFIELD P.O., ELAPPARA VILLAGE, IDUKKI DISTRICT. 2. VINCENT, S/O.GNANAIAH, TEA SHOP, BON-AMI ESTATE, FAIRFIELD P.O., ELAPPARA VILALGE, IDUKKI DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34376 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 1st December, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To call for the records relating to O.S.No.107 of 2000 and direct the learned Munsiff to keep the trial of the case in abeyance till a report is submitted by the Advocate Commissioner. 2. To stay the trial of the suit O.S.No.107 of 2000 till a proper report is submitted by the Advocate Commissioner. 2. Petitioner is the plaintiff in O.S.No.107 of 2000 on the file of the Munsiff Court, Peermade. Suit is for recovery of possession, and the respondents are the defendants. The case of the plaintiff in short is that plaint property having an extent of 5 cents was under the occupation of the first defendant as a licensee and he had unauthorisedly inducted the second defendant into the property without permission from the plaintiff. The first defendant filed a written statement disputing the suit claim and challenging even the title of the plaintiff over the plaint property. The writ petition is filed by the plaintiff to stay the trial of the suit till a report is filed by the advocate commissioner. W.P.C.No.34376/09 - 2 - 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. Copy of the B diary of the case has been produced as P5 with the writ petition. In the suit, it is seen, after settlement of the issues on 28.6.2001, an application for appointment of an advocate commission moved by the plaintiff as I.A.No.708 of 2001 was allowed on 13.9.2001. The proceedings paper of the court would indicate thereafter the case was posted from time to time for filing of the commission report. Suit was dismissed for default on 7.3.2003 for the absence of the plaintiff, and later, restored to file on 19.9.2003 allowing the application moved by the plaintiff. It is seen from the proceedings paper the suit was again dismissed on 2.7.2005, and later, restored to file on 30.3.2006. On the same day the court fixed the date for inspection of the property by the commissioner and also the taluk surveyor. That order of commission was not executed. It was reported by the taluk surveyor and also the advocate commissioner there was lack of proper assistance from the plaintiff to execute the commission order. The orders made by the court on 20.11.2008 in P5 would disclose of the report received from the taluk surveyor and also the submissions of the advocate commissioner. The W.P.C.No.34376/09 - 3 - court has then ordered for proceeding with the suit without C.R. directing the listing of the case for trial. Again on a review petition filed by the plaintiff, it is seen, the court directed to take out a fresh commission fixing the time limit. The case listed on 6.3.2009 was ordered to be removed from the list later as it was reported by the advocate commissioner that he had visited the property. Though several postings were given for filing the report from time to time, it appears, survey measurements were not done and report not filed by the commissioner. Thereafter with a direction to file the report, the court below has ordered on 29.10.2009 to include the case for trial in the month of December, 2009. Apparently, the order passed by the court below for listing the case for trial in the manner indicated was not proper and correct. However, in the given facts of the case, where the plaintiff, a firm, which claims of title and possession over an estate having a total extent of more than 700 acres, of which plaint property of five cents is claimed to be forming part of, after institution of the suit, nearly a decade ago, has not taken prompt steps for executing a commission order to identify the plaint property despite dismissal of its suit more than once for default, I find the visitorial jurisdiction of the court cannot be invoked at this stage for the reliefs canvassed for. If at all, the plaintiff was W.P.C.No.34376/09 - 4 - vigilant and prompt in rendering proper assistance to the commissioner and also the taluk surveyor, the plaint property could have been identified and a report and plan got filed before the court much earlier. In the given facts and circumstances of the case, I find that the petitioner/plaintiff cannot invoke the supervisory jurisdiction of this court at the stage when the case has already been ordered to be included in the special list for trial. Learned counsel for the petitioner fairly submitted that the case stands posted for trial in the special list day after tomorrow (3.12.2009). The order passed by the court below for inclusion of the case in the list without waiting for the commission report is seen passed as on 29.10.2009. The delay which had transpired for challenging that order has also not been properly explained. Having regard to the fact that the suit was instituted in 2000 and no sincere attempt had been made by the plaintiff other than moving a commission application, for identification of the plaint property, I find the writ petition is not entertainable. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE