IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 33408 of 2008(B) -------------------------- OS.280/2006 of MUNSIFF COURT, HOSDRUG .................... PETITIONER(S): ------------------------ M.MALLIKA, W/O.JANARDHANAN, MALLAKKARA, NEAR G.U.P.SCHOOL, PILICODE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. MR.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): ---------------------------- RAYARAMANGALAM DEVASWOM, PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, REPRESENTED BY ITS EXECUTIVE OFFICER. BY ADV. MR.KODOTH SREEDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33408/2008 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF DECREE DTD. 13/12/2001 IN O.S.274/98 MUNSIFF'S COURT, HOSDURG WITH PLAN. P2: COPY OF COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S.280/2006 MUNSIFF'S COURT, HOSDURG. P3: COPY OF AFFIDAVIT AND PETITION I.A.2020/2008 IN O.S.280/2006 MUNSIFF'S COURT, HOSDURG. P4: COPY OF ORDER DTD. 25/06/2008 IN I.A.2020/2008 IN O.S.280/2006 MUNSIFF'S COURT, HOSDURG. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33408 of 2008 - B --------------------------------- Dated this the 14th day of August, 2009 JUDGMENT The writ petition is filed seeking the following reliefs: “i) To set aside/quash Exhibit P4. ii) To remit Exhibit P2 report and plan to the same Advocate Commissioner to submit a fresh report and plan after rectifying the mistakes pointed out in Exhibit P3.” 2. Petitioner is the first defendant in O.S.No.280 of 2006 on the file of the Munsiff Court, Hosdurg. Suit is one for injunction, both prohibitory and mandatory, and respondent is the plaintiff. The challenge in the writ petition is against Ext.P4 order passed by the learned Munsiff declining the request of the petitioner/first defendant to remit the report and plan prepared by an advocate commissioner appointed by the court in the suit. 3. I heard the learned counsel for the petitioner and also first respondent/plaintiff. 4. It is submitted that neither the commissioner nor surveyor was examined in the enquiry to consider the merit of W.P.(C).No.33408 of 2008 - B 2 the commission report. Learned counsel for the petitioner seeks an opportunity to examine the commissioner and also the surveyor at the time of trial of the suit. It is further submitted that there was a previous suit between the parties in which another report and plan was prepared by a commissioner. 5. Having regard to the submissions made and taking note of the facts and circumstances presented, I find that the merit of the report and plan prepared by the commissioner deserves to be examined with reference to the objections raised by the petitioner at the trial of the suit. Untrammelled by any of the observations made in Ext.P4, court below is directed to consider the report and plan at the trial, provided, the petitioner take appropriate steps for examining the commissioner and also surveyor in time to substantiate his objections. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-