IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 22827 of 2009(O) -------------------------- OS.669/2007 of PRL. MUNSIFF COURT, KOZHIKODE-I .................... PETITIONERS: D2 TO D4: ------------------------ 1. S.M.AVARAN KOYA, AGED 75, S/O.K.V.MUHAMMED, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. A.M.USMAN KOYA, AGED 72, S/O. S.M.KADIRIKOYA, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 3. A.M.MUHAMMAD KOYA, AGED 65, S/O.BASHIRUDHEEN, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS SRI.SRINATH GIRISH RESPONDENTS: --------------- 1. SEETHIMARAKKARAKATH SHEREEFA, AGED 38, D/O.KUNHAHAMMAD, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.P.V.SURENDRANATH,SC,KOZHIKODE CORPN FOR R2 SRI.K.M.FIROZ FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (W.P.C.22827/09) PETITIONERS EXTS.: EXT.P1: TRUE COPY OF THE PLAINT DATED 7.11.2007 IN O.S.NO.669/07 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF, KOZHIKODE-1. EXT.P2: TRUE COPY OF THE JUDGMENT DATED 6.10.2008 IN R.P.NO.1006 OF 2008 IN WPC 22810 OF 2008. EXT.P3: TRUE COPY OF THE WRITTEN STATEMENT DATED 10.3.2008 OF DEFENDANTS 2 TO 4 IN O.S.NO.669/07 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF, KOZHIKODE-1. EXT.P4: TRUE COPY OF THE AFFIDAVIT, PETITION, WORK MEMO DATED 18.2.2008 AND ORDER SHEET IN I.A.NO.923/08 IN O.S.NO.669/07 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF, KOZHIKODE-1. EXT.P5: TRUE COPY OF THE ORDER DATED 13.7.2009 IN I.A.NO.923/08 IN O.S.NO.669/07 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF, KOZHIKODE-1. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 22827 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 6th October, 2009 JUDGMENT The Writ Petition is filed seeking the following relief: “To set aside Ext.P5 order and direct the court below to give necessary directions to the Advocate Commissioner appointed in O.S.No.669/2007 to submit his report and plan expeditiously.” 2. The grievance canvassed by the petitioners is that on default of the Advocate Commissioner appointed by the court to determine the points sought for, which are necessary for adjudication of the suit, and a request being made before the court to give appropriate directions/orders to the Commissioner to file his report, the court passed P5 order dismissing the commission application. Counsel submitted that Advocate Commissioner deputed had already conducted local inspection and the report need alone be filed before the court. Since there was delay, submission was made before the court for early filing of the report. However, for the reason that steps were not taken to remove the Commissioner, the court below dismissed the commission application as such. Submissions made as above by the learned counsel for the petitioners are not disputed by the counsel for the respondents. The order passed by the learned W.P.C.No.22827/09 - 2 - Munsiff is patently unsustainable. Setting aside P5 order, I direct the court below to take necessary steps for submission of the commission report, issuing appropriate orders to the commissioner to file the report at an early date. Subject to the above direction, the Writ Petition is disposed. srd S.S. SATHEESACHANDRAN, JUDGE