IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 WP(C).No. 7933 of 2009(O) ------------------------------------- IA.5557/2008 IN OS.372/2006 of II ADDL. MUNSIFF COURT, KOZHIKODE. .................... PETITIONER(S): ----------------------- 1. VISHOOB, AGED 28 YEARS, S/O.CHANDRAN, RESIDING AT KUTTIYERIMMAL, MANASSERI AMSOM DESOM, KOZHIKODE TALUK. 2. SUJEESH, AGED 26 YEARS, S/O.CHANDRAN, RESIDING AT KUTTIYERIMMAL, MANASSERI AMSOM DESOM, KOZHIKODE TALUK. 3. SUNEESH, AGED 24 YEARS, S/O.CHANDRAN, RESIDING AT KUTTIYERIMMAL, MANASSERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. MR.K.M.FIROZ RESPONDENT(S): ------------------------- 1. APPUTTY, AGED 58 YEARS, S/O.CHERUTTY, RESIDING AT KUTTIYERIMMAL, MANASSERI AMSOM DESOM, KOZHIKODE TALUK. 2. RAJAN, AGED 49 YEARS, S/O.CHERUTTY, RESIDING AT KUTTIYERIMMAL, MANASSERI AMSOM DESOM, KOZHIKODE TALUK. 3. VASU, AGED 46 YEARS, S/O.CHERUTTY, RESIDING AT KUTTIYERIMMAL, MANASSERI AMSOM DESOM, KOZHIKODE TALUK. 4. K.BABU, AGED 45 YEARS, S/O.KUTTYPENNU, RESIDING AT KUTTIYERIMMAL, MANASSERI AMSOM DESOM, KOZHIKODE TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 7933 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of March, 2010. JUDGMENT In this petition filed under Article 227 of the Constitution of India, petitioners assail Ext.P10 order passed in I.A. 5557 of 2008 in O.S. 372 of 2006 before the IInd Additional Munsiff's Court, Kozhikode. 2. Petitioners are plaintiffs 2 to 4 in O.S. 372 of 2006 before the IInd Additional Munsiff's Court, Kozhikode. The suit was one for recovery of plaint B schedule property based on their title and for consequential reliefs. Plaint B schedule is a part of plaint A schedule property. The defendants resisted the suit pointing out that plaint B schedule property is part of R.S. No.146/2 and the plaintiffs have no property in that survey number. Copy of the written statement so filed by the defendants is produced as Ext.P2. The plaintiffs had filed I.A. 2204 of 2006 seeking issuance of a commission. That application was allowed and a WPC. 7933/2009. 2 Commissioner was appointed. The Commissioner filed a report and plan, which are produced as Exts.P4 and P4(a). Several other allegations are made in the petition, which are not very relevant for the present purpose. Suffice it to say, petitioner filed I.A. 2451 of 2006 and in that petition, the court directed the same Commissioner to visit the property and to a file a report. The Commissioner filed a report, which is marked as Ext.P5. Thereafter the plaintiffs filed I.A. 3720 of 2006 for remitting the report and plan to the same Commissioner, and that application was also allowed. The Commissioner filed Exts.P8 and P8(a) report and sketch. Plaintiffs then filed I.A. 3376 of 2007 for setting aside Ext.P8 report and Ext.P8(a) plan and to appoint a new Commissioner. That petition was dismissed by the court below. Then the plaintiffs filed I.A. 5557 of 2008 for an additional report and sketch. That petition was dismissed by the court below. The said order is assailed in this writ petition. WPC. 7933/2009. 3 3. Learned counsel appearing for the petitioners points out that the court below was not justified in dismissing the application merely on the basis that there was an earlier application to set aside the Commissioner report and that had been dismissed. It is pointed out that by the order in I.A. 3720 of 2006 the court below remitted the reports and plans to the Commissioner for a proper report regarding the additional facts which are necessary for the case. The specific contention taken is that in the earlier report plaint B schedule had not been properly identified and that affects the case of the plaintiffs since they seek recovery of the same. It was for the said purpose he had sought remission of the report and for a fresh report including the identification of plaint B schedule property. WPC. 7933/2009. 4 4. The court below has passed a considered order in the petition. It is found that the present petition is a disguise to get over the embargo on the earlier petition. The court below has also found that there is no merit in the case of the petitioners because the commission report now available seems to contain what is required by the petitioners. The court below found that there was no justifiable reasons to remit the commission report. The court below has also observed that if the petitioners have any objection to the commission report, they are free to establish it at the time of trial. 5. The court below considered the various aspects and also found that the petitioners will be at liberty at the time of trial to establish that the commission report is wrong or is not complete. That safe guards the interest of the petitioners. In case during trial, it is found that plaint B schedule has not been properly identified and the petitioners make an application to have the said property properly WPC. 7933/2009. 5 identified, there is no reason to believe that the court below will not consider the same and dispose of the same in accordance with law. Reserving the liberty of the petitioners to do so, this petition is dismissed. P. BHAVADASAN, JUDGE sb.