IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 WP(C).No. 19157 of 2009(O) -------------------------- AGAINST THE ORDER DATED 21/01/2008 IN IA.5390/08 IN OS.486/2005 of ADDL.MUNSIFF'S COURT, KOLLAM .................... PETITIONER(S): ------------------------ MARY ABRAHAM, AGED 66 YEARS, VAYALIL PUTHEN VEEDU, KARPOORAM CHERRY, VADAKKEVILA VILLAGE, KOLLAM. BY ADV. MR.AJAYA KUMAR. G RESPONDENT(S): --------------------------- 1. KAVIRAJAN, AGED 55 YEARS, S/O.SARADA, VAYALIL PURAYIDOM, VADAKKEVILA VILLAGE, KARPOORAM CHERRY, PATTATHANAM, KOLLAM. 2. RAMARAJAN, AGED 55 YEARS, S/O.CHELLAMMA, VAYALIL PURAYIDOM, VADAKKEVILA VILLAGE, KARPOORAM CHERRY, PATTATHANAM, KOLLAM. 3. RETNAKUMARI, AGED 50 YEARS, D/O.CHELLAMMA, VAYALIL PURAYIDOM, VADAKKEVILA VILLAGE, KARPOORAM CHERRY, PATTATHANAM, KOLLAM. 4. P.MARY ABRAHAM, AGED 62 YEARS, ASWATHY BHAVAN, VAYALIL PURAYIDOM, VADAKKEVILA VILLAGE, KARPOORAM CHERRY, PATTATHANAM, KOLLAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.19157 OF 2009 (O) ----------------------------------- Dated this the 8th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to issue any appropriate writ order or direction setting aside the order in I.A.No.5390/2008 in O.S.No.486/2005 dated 21.1.2008 before the Additional Munsiff's Court, Kollam and the prayer in the said I.A. may be allowed by setting aside the commission report and plan dated 14.4.2007. ii. to issue such other writ order or direction, as this Hon'ble Court may deem fit and proper under the circumstances of the case. 2. Petitioner is the plaintiff in O.S.No.486/205 on the file of the Additional Munsiff 's Court, Kollam. Suit is one for fixation of boundary and for mandatory injunction. A commissioner appointed by the court conducted a local inspection and measured out the suit property and prepared a WPC.19157/09 2 plan with the assistance of a surveyor. Petitioner filed objections to that report and plan, which after enquiry, were negatived by the learned Munsiff. Ext.P5 is the copy of that order. Propriety and correctness of Ext.P5 order is challenged by the petitioner invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. Having regard to the facts and circumstances presented and the submissions made by the learned counsel for the petitioner, I find no notice to the respondents is called for, and hence, it is dispensed with. In Ext.P5 order, the court has found fault with the plaintiff for not producing the resurvey plan during the enquiry conducted over the objections raised by him to the Commission report and plan. It is also seen from the order that learned Munsiff is of the view that without referring to that resurvey plan, it is not possible to set aside the report and plan. The Commissioner and surveyor were examined as CPW1 and CPW2. Having regard to the submissions made and taking note of Ext.P5 order, I find the question regarding the validity of the Commission report and plan with reference to the evidence already recorded can be considered in trial giving the WPC.19157/09 3 petitioner one more opportunity to produce the resurvey plan. In the trial, if any such plan is produced on the evidence recorded, with reference to that plan if the court finds that there is some merit in the objections raised by the petitioner, then appropriate orders have to be passed. Ext.P5 order will not stand in the way of the court in passing an order on the merit of the commission report and plan, after trial of the suit. In case, the resurvey plan is produced by the plaintiff, I make it clear that a fresh enquiry before the case is being listed for trial is not required, but after trial, for any reason, the court finds that the report and plan are liable to be set aside or remitted for rectifying deficiency, if any, appropriate orders have to be passed, as found fit and proper, for a fair and proper disposal of the suit on merits. Writ petition is disposed accordingly. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009