IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 35906 of 2008(Y) --------------------------------------- (IA. NO.4241/08 IN OS.NO.137/2007 OF ADDL.MUNSIFF COURT,TRIVANDRUM) .................... PETITIONER: ------------------- LILLY HUDSON, W/O.SAM.D.HUDSON, TC 2/3248, ROHINI COMPOUND, OPP. LIC PATTOM, THIRUVANANTHAPURAM. BY ADVS. MR.SUMAN CHAKRAVARTHY, MR.M.R.RAJESH. RESPONDENTS: ------------------------ 1. REMLA, D/O.D.LIVINGSTON, TC 2/2169(1), MARAPPALAM JUNCTION, PATTOM P.O., THIRUVANANTHAPURAM, REPRESENTED BY HER FATHER AND POWER OF ATTORNEY D.LIVINGSTON, ROHINI GARDENS, MARAPPALAM JUNCTION, PATTOM P.O., THIRUVANANTHAPURAM. 2. ASHA HUDSON, D/O.LILLY HUDSON, TC 2/3248, ROHINI COMPOUND, OPP. LIC, PATTOM, THIRUVANANTHAPURAM. 3. ANIL HUDSON, TC 2/3248, ROHINI COMPOUND, OPP. LIC, PATTOM, THIRUVANANTHAPURAM. 4. ANOOP HUDSON, TC 2/3248, ROHINI COMPOUND, OPP. LIC, PATTOM, THIRUVANANTHAPURAM. 5. ANUJA HUDSON, D/O.LILLY HUDSON, TC 2/3248, ROHINI COMPOUND, OPP. LIC, PATTOM, THIRUVANANTHAPURAM. R1 BY ADVS. MR.V.SURESH, MR.G.SUDHEER, MR.S.BALACHANDRAN, R3 TO R5 BY ADV. SMT.K.R.RIJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.35906/2008-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 137/2007 OF MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P.2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM OF THE R.1. IN EXT.P.1 SUIT. EXT.P.3: COPY OF THE COMMISSION REPORT AND ROUGH SKETCH IN EXT.P1 SUIT. EXT.P.4: COPY OF THE COMMISSION REPORT AND SURVEY PLAN OF B SCHEDULE PROPERTY IN EXT.P.1. EXT.P.5: COPY OF THE COMMISSION APPLICATION I.A. NO. 4142/2008 IN EXT.P.1. SUIT. EXT.P.6: COPY OF THE ORDER DTD. 16/07/2008 DISMISSING EXT.P.5. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.35906 of 2008 - Y --------------------------------- Dated this the 20th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To issue a writ in the nature of certiorari or any other writ direction or order calling for the records leading to Ext.p6 order and quashing the same and further allowing Ext.P5 petition.” 2. Petitioner is the plaintiff in O.S.No.137/2007 on the file of the Munsiff Court, Thiruvananthapuram. Ext.P1 is the copy of the plaint in the suit in which a decree for permanent prohibitory injunction restraining the first defendant from constructing a building touching plaint A schedule property in violation of the Kerala Municipalities Act and Kerala Building Rules is sought for. Admittedly, in the suit, two commissioners conducted local inspection and filed reports, one at the instance of the plaintiff and the other at the instance of the respondent/defendant. The second report was filed by the commissioner after measuring the properties with the assistance of a surveyor. A plan was also appended to the report. The W.P.(C).No.35906 of 2008 - Y 2 petitioner thereupon filed a petition styled as 'objections' to that commission report seeking determination of some additional matters. Ext.P5 is the copy of the petition filed by the petitioner. Learned Munsiff dismissed that petition under Ext.P6 order. Propriety and correctness of that order is challenged in this 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. 4. Inviting my attention to some statements made in Ext.P6 order that there was boycott of the advocates on the day when Ext.P5 application came up for consideration the learned counsel for the petitioner urged sufficient opportunity was not given to present his case and Ext.P6 has been passed without considering his application on merits. On the other hand learned counsel for the respondent inviting my attention to Ext.P5 petition and also the two reports already collected in the case submitted that no decision has been taken by the court with respect to the merit of those reports. At this stage, according to the counsel, a fresh commission on the request of the W.P.(C).No.35906 of 2008 - Y 3 petitioner/plaintiff is not permissible. I find considerable force in the submission made by the learned counsel for the respondent. In Swami Premananda Bharathi v. Swami Yogananda Bharathi(1985(1) KLT 144) this Court has held, a second commission report without setting aside the previous report is impermissible. The report and plan filed by the commissioner, that too after measurement of the property is yet to be examined by the court and before any decision is taken thereof on its merits, no fresh application for commission from any of the parties to the suit is not entertainable. So, I do not find any reason to interfere with Ext.P6 order passed by the court below. The writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-