IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 27593 of 2008(I) -------------------------- AGAINST THE ORDER DATED 12.08.2008 IN IA 1762/2008 IN OS.40/2006 of PRINCIPAL MUNSIFF COURT-I, KOZHIKODE .................... PETITIONER/2ND DEFENDANT: ---------------------------------- JAYAPRAKASH, KUTTIMALU NIVAS, THALAPPOYYIL HOUSE,EDAKKADU AMSOM, PUTHIYANGADI DESOM, KOZHIKODE. BY ADV. SRI.DILIP MOHAN RESPONDENTS/PLAINTIFF/1ST DEFENDANT ------------------------------------------------- 1. PALATHINGAL KHADEEJA, W/O K.C.MUHAMMADALI, VAYALIL HOUSE, BIHAS, KUTTICHIRA AMSOM, KOZHIKODE. 2. SOUMINI, KUTTIMALU NIVAS, THALAPPOYYIL HOUSE, EDAKKADU AMSOM, PUTHIYANGADI DESOM, KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C) No. 27593 of 2008 ========================== Dated this the 16th day of October, 2008. JUDGMENT The petitioner who is the 2nd defendant in O.S. No. 40 of 2006 on the file of the Principle Munsiff's Court-I, Kozhikode, challenges Ext.P3 order dated 12.08.2008 as per which his application filed as I.A No. 1762 of 2008 to remit the report of the Commissioner was dismissed as belated. The said suit is one for mandatory injunction to remove the alleged obstruction caused to the plaint B Schedule property over which the plaintiffs claim a right of way by way of grant. The petitioner herein who is the 2nd defendant in the suit was set ex parte on 11.10.2006. In the mean while, on the request of the plaintiffs, the court below appointed an Advocate Commission and the Commissioner had filed his report on 08.01.2008. The petitioner who was set ex parte on 11.10.2006 filed an application to set aside the order setting him ex parte only on 25.02.2008 and the said application was allowed on 03.03.2008. Thereupon, the petitioner/2nd defendant would want to assail whatever proceedings which took W.P.(C) No. 27593/2008 : 2: place during his absence. It is well settled that he cannot go back to an earlier stage of the proceedings. (See Om Prakash v/s. Amarjit Singh – 1988 (2) KLT (SN) 17) If so, the application filed by him on 23.05.2008 to remit the report of the Commissioner which was filed on 08.01.2008 was rightly dismissed by the court below. The petitioner can nevertheless adduce other evidence to substantiate his defence in the case. Reserving this right of the petitioner, this writ petition is dismissed. Dated this the 16th day of October, 2008. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 27593/2008 : 3: