IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 23547 of 2008(C) -------------------------- (OS 1699 OF 2004 ON THE FILE OF MUNSIFF COURT, TRIVANDRUM) PETITIONER: ------------ LALITHA BAI, D/O.AMBUJAKSHI AMMA, RESIDING AT KRISHNAKRIPA, V.K.K. NAGAR, PERUMTHANNI, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: ------------- 1. BINU VASANTH, S/O.T.SETHUNATH, SREE PONNAMBALAM, MUTTATHARA, TRIVANDRUM. 2. BINDHU VASANTH, D/O.T.SETHUNATH, SREE PONNAMBALAM, MUTTATHARA, TRIVANDRUM. 3. BAIJU VASANTH, S/O.T.SETHUNATH, SREE PONNAMBALAM, MUTTATHARA, TRIVANDRUM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 23547 OF 2008 ............................................ DATED THIS THE 5th DAY OF AUGUST, 2008 JUDGMENT Petitioner is the second defendant and respondents, the plaintiffs in O.S.1699 of 2004 on the file of Munsiff Court, Thiruvananthapuram. Suit was filed for declaration of their title to plaint G schedule and to recover possession of plaint H schedule property and for a mandatory injunction to demolish the structure in plaint H schedule property and for incidental reliefs. Respondents filed I.A.6909 of 2006, an application for appointment of a Commission to measure and locate plaint G and H schedule properties. Petitioner filed Ext.P5 detailed objection consisting of 14 paragraphs. 2. Learned Munsiff, under Ext.P6 order, allowed the petition, which reads as follows:- “Heard both sides. As a report and plan is highly necessary for proper adjudication, I.A is allowed. Advocate Gireesh P Raja is appointed as Commissioner and Sri K.R.Chandrakumar as WP(C) 23547/2008 2 Surveyor. Commission Bata Rs.2000/- and Surveyor Bata Rs.600/- shall be deposited. Note the points and file Commission Report”. This petition is filed under Article 227 of Constitution of India challenging Ext.P6 order. 3. Learned counsel appearing for petitioner was heard. 4. In view of the order to be passed in this petition, it is not necessary to issue notice to respondents. 5. The argument of the learned counsel is that in spite of Ext.P5 objection, learned Munsiff did not consider the objection and allowed the application and therefore Ext.P6 order is to be quashed. 6. Though learned Munsiff allowed the application finding that a report by a Commissioner is highly necessary for adjudication of the dispute involved in the suit, there is force in the submission of the learned counsel that learned Munsiff did not consider Ext.P5 objection. Learned counsel pointed out that respondents have earlier instituted a suit and the properties were identified and a report was submitted and when the suit WP(C) 23547/2008 3 was in the special list, it was withdrawn without obtaining liberty to file fresh suit and the description of the plaint schedule properties are not in accordance with the partition deed under which respondents are also claiming title and therefore learned Munsiff should not have appointed the Commission without considering the objection. 7. As is clear from Ext.P6 order, learned Munsiff did not consider the objections raised by petitioner. Though an order could be brief, it cannot be blank. As Ext.P6 order is blank, the order is quashed. I.A.6909 of 2006 is remanded to Additional Munsiff Court, Thiruvananthapuram for fresh disposal in accordance with law. Learned Munsiff to consider the objections raised by petitioner to I.A.6909 of 2006 and pass appropriate orders after hearing both the parties in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk/-