IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 365 of 2009(R) ------------------------ OS.323/2005 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER(S): --------------- MUHAMMED ALI, AGED 62 YEARS S/O. THARUPEEDIKAYIL KUNJUMOIDEEN NELPINI DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): --------------- 1. MAJEED, S/O. THARUPEEDIKAYIL KUNJUBEERAN, NELPINI DESOM SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK. 2. FASILA W/O. THARUPEEDIKAYIL MAJEED, NELPINI DESOM SREENARAYANAPURAM VILLAGE, ADV. SRI.K.A.JALEEL FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 365/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PLAINT IN OS 323/05 FILED BEFORE THE MUNSIFF COURT, KODUNGALLUR EXT.P2: COPY OF WRITTEN STATEMENT FILED BY DEFENDANTS IN OS 323/05. EXT.P3: COPY OF REPORT OF THE ADVOCATE COMMISSIONER DATED 6.4.05. EXT.P4: COPY OF REPORT DATED 7.6.2007 FILED BY ADVOCATE COMMISSIONER EXT.P5: COPY OF IA NO.1689/07 IN OS 323/05 EXT.P6: COPY OF OBJECTION TO EXT.P4 REPORT EXT.P7: COPY OF IA 236/08 INB OS 323/05 EXT.P8: COPY OF ORDER IN IA 236/08 IN OS 323/05 EXT.P9: COPY OF IA 989/08 IN OS 323/05 EXT.P10: COPY OF ORDER IN IA 989/08 IN OS 323/05. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.365 of 2009 --------------------------------------------- Dated this the 5th day of March, 2009 JUDGMENT The plaintiff in O.S.No.323 of 2005, on the file of the court of the Munsiff of Kodungallur, is the Writ Petitioner. The suit was filed for fixation of boundary. The plaint A schedule property belongs to the plaintiff. The plaint B schedule property which is situated on the northern side of the A schedule property belongs to the defendants. A Commissioner (Advocate K.N.Manoharan) was appointed at the instance of the plaintiff. The Commissioner filed Ext.P3 report dated 6.4.2005. I.A.No.1013 of 2006 was filed by the petitioner/plaintiff to appoint a Commissioner to measure the property in accordance with the survey. Advocate Suresh Muraleedharan was appointed by the court who filed Ext.P4 report and plan dated 7.6.2007. The petitioner/plaintiff filed I.A.No.1689 of 2007 to set aside the report and plan submitted by Advocate Suresh Muraleedharan. That application was not disposed of and it was directed to be taken up along with the suit. WPC No. 365/2009 2 2. The suit was posted in the list on 9.10.2007. Since the petitioner did not appear, the suit was dismissed for default. On 23.11.2007, the suit was restored to file. Alleging that the defendants trespassed into the property, the petitioner filed I.A.No.236 of 2008 for appointing a Commissioner. That application was allowed as per Ext.P8 order dated 30.6.2008. The court below appointed Advocate Suresh Muraleedharan as the Commissioner. Challenging Ext.P8 order to the extent to which Advocate Suresh Muraleedharan was appointed, the petitioner filed Ext.P9 Review Petition. The Review Petition was dismissed as per Ext.P10 order dated 1st July 2008, which is under challenge in this Writ Petition. There is no dispute that Advocate Suresh Muraleedharan was appointed earlier. His report was not set aside as requested by the petitioner. No personal bias was alleged against the Advocate Commissioner. Advocate Suresh Muraleedharan had occasion to inspect the property with the survey officials and he had filed Ext.P4 report and plan. There was nothing wrong in appointing the same Commissioner as per the order in I.A.No.236 of 2008. The court below was right in rejecting the Review Petition. The contention WPC No. 365/2009 3 of the petitioner is that Ext.P4 report and plan submitted by the Commissioner are erroneous and that if the same Commissioner is appointed, no fruitful purpose would be served. That is not a ground for not appointing the same Commissioner at a later stage. The request for setting aside the report and plan submitted by the Commissioner was not disposed of by the court below. Therefore, the court below was justified in dismissing the Review Petition. No interference is called for. The Writ Petition is devoid of merit and it is accordingly dismissed. K.T.SANKARAN, JUDGE csl