IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 WP(C).No.33855 of 2008 (E) ---------------------------------- OS.111/2003 of MUNSIFF COURT, NORTH PARAVUR .................... PETITIONER: --------------- JOSEPH @ SHELLY,PUTHUSSERY HOUSE CHIRAKKAKAM KARA, VARAPUZHA VILLAGE,PARAVUR TALUK. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENTS: ------------------ 1. SADANANDAN, S/O BHAHULEYAN AASTHILIKKAL HOUSE, CHIRAKKAKAM KARA. VARAPUZHA VILLAGE, PARAVUR TALUK. 2. LOHITHAKSHAN, S/O.BHAHULEYAN DO..DO.... 3. ARUNDHATHI, W/O VASU, DO..DO..... THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.33855 of 2008 ------------------------------------------------ Dated this the 17th day of November, 2008 JUDGMENT Petitioner who is the second plaintiff in O.S.111/03 on the file of the Munsiff's Court, North Paravur has filed this writ petition seeking for an order setting aside Ext.P11 order passed by the Munsiff on I.A.2882/08 which was a petition filed in that suit for issue of a fresh commission. 2. Counsel for the petitioner submits that it is only when the suit was listed and the Commissioner was examined as a witness that it came to light that he could not give evidence supporting Ext.C1(a) plan prepared by the Surveyor who was assisting him. The learned Munsiff has only observed in the impugned order while disallowing Commission application that after closing of the evidence if the court is of the opinion that there is W. P. C. No.33855 of 2008 -2- any necessity to call for any additional Commission Report the said request can be considered at that stage and that the request to set aside Exts.C1 and C1(a) Commission Report and plan at that juncture cannot be allowed. The question whether Exts.C1(a) plan is properly prepared as desired by the parties measuring out the property is something which can be got clarified from the Surveyor himself and unless the Surveyor is examined it will not be evidenced as to whether Ext.C1(a) plan is liable to be accepted or not. Hence, I am of the view that instead of interfering with Ext.P11 order at present, it is only appropriate to avoid further delay in the matter to direct the learned Munsiff to give an opportunity to the petitioner to examine the Surveyor as well. It would be unnecessarily protracting the matter if further trial is proceeded with without W. P. C. No.33855 of 2008 -3- examining the Surveyor. 3. In the result, I dispose of this Writ Petition directing the court below to give an opportunity to the petitioner/second plaintiff to examine the Surveyor who assisted the Commissioner and prepared Ext.C1(a) plan as probably on examining the Surveyor also it may come to light as to whether Ext.C1(a) plan deserves to be set aside or not. 4. With the above directions, this Writ Petition is disposed of. The petitioner is to produce a copy of this judgment before the Trial Court with notice to the respondent forthwith as this Writ Petition is being disposed of without notice to the respondents. K.P.BALACHANDRAN, JUDGE kns/-