IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 36691 of 2009(O) -------------------------- OS.1849/2003 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- P.SHYJU, S/O.PRABHAKARAN MADHAVAMANGALATHU VEEDU EDYATTINAKATHU, MANATHITTA, MUTTATHARA, THIRUVALLAM, THIRUVANANTHAPURAM. BY ADV. SRI.B.SATHIQ SRI.C.ANIRUDHAN RESPONDENT(S): --------------- H.VIJAYAKUMARI W/O.HANS DEVA DAS, DEVAGIRI, MAYYANADU MAYYANADU P.O.KOLLM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.36691 OF 2009 -------------------------------- Dated this the 18th day of December 2009 ---------------------------------------------------------- JUDGMENT Petitioner is the defendant in O.S No.1849 of 2003 on the file of 2nd Additional Munsiff Court, Thiruvananthapuram. Suit is one for injunction and putting up of boundary, and the respondent is the plaintiff. Resisting the suit claim, petitioner/defendant has filed a written statement in which among other contentions she has disputed the description and identity of the plaint property. After casting of issues on the pleadings of the parties in the suit, the learned Munsiff allowed the applications for appointment of commission moved by both sides. The order passed by the learned Munsiff was challenged by the plaintiff since some of the points sought for were declined by filing a writ petition and it was disposed by Ext.P6 judgment. Pursuant to Ext.P6 judgment, the advocate commissioner conducted local inspection, measured out the property and W.P.(C).No.36691 OF 2009 Page numbers filed a report and plan with the assistance of a surveyor. To that report and plan, petitioner/defendant raised objections contending that the matters sought for in his application have not been considered by the advocate commissioner. The learned Munsiff after hearing both sides remitted the report for filing a fresh report and plan directing both sides to pay the batta. Only the plaintiff paid batta and not the defendant as seen from Ext.P11 order passed by the learned Munsiff. After such remission, defendant moved an application under Section 151 of the Code of Civil Procedure for removal of the advocate commissioner and surveyor. That application was dismissed by the learned Munsiff vide Ext.P11 order. Petitioner/defendant also moved another application for measuring out the property with reference to a plan prepared by the revenue authorities in connection with some acquisition proceedings. That application was also dismissed by the learned Munsiff vide Ext.P13 order. Propriety and correctness of Ext.P11 and Ext.P13 orders are W.P.(C).No.36691 OF 2009 Page numbers challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and hence it is dispensed with. Before appreciating the submissions made by the learned counsel for the petitioner and the challenges raised against Ext.P11 and Ext.P13 orders, advertence to what transpired during the pendency of the proceeding as given expression to Ext.P11 order by the learned Munsiff is necessary. In paragraph 5 of Ext.P11 order, learned Munsiff has stated thus: “From the records it is evident that petitioner/defendant failed to comply with the direction of this court to pay batta to advocate commissioner and surveyor and therefore the petition filed by defendant happened to be dismissed on 02/07/2007. Therefore even if W.P.(C).No.36691 OF 2009 Page numbers advocate commissioner was aware about the direction of Hon'ble High Court dated, 19/08/2005, she is not bound to ascertain the facts noted in I.A No. 4610/2005 unless there is a specific order by the court to do so. The petitioner filed fresh vakalath through advocate V.K Radakrishnan Nair and Adv. K.R.Shyam Sekhar on 28/08/2008. And on the date of trial ie, on 03/08/2009, counsel for defendant submitted that defendant was directed to appear before Hon'ble High Court in WP No.17408/2009 and even though I.A No.7130/2009 was filed to remove the case from list it was not allowed and case was adjourned to 17/08/2009. On that day it was submitted that matter can be settled between the parties and case was adjourned to 25/08/2009 for filing compromise. Compromise was not filed and case was removed from list and was relisted to 08/09/2009. On that day counsel for defendant relinquished vakalath. Defendant present before court sought time to file fresh vakalath. Fresh vakalath was filed before court on 15/09/2009 and thereafter counsel for defendant produced copy of judgment W.P.(C).No.36691 OF 2009 Page numbers in WPC No. 21392/2005 dated, 19/08/2005 on 23/09/2009 and filed I.A No.9019/2009. Even though the defendant was negligent in prosecuting his case and failed to pay batta to advocate commissioner and surveyor, the petition was allowed in the interest of justice on 12/10/2009. Notice was ordered to advocate commissioner and advocate commissioner was represented on 29/10/2009. Thereafter defendant was directed to pay batta and file memo and case was adjourned to 16/11/2009. The present petition is filed on 16/11/2009 alleging that advocate commissioner wilfully disobeyed the direction of Hon'ble High Court.” It is in the above contextual facts presented that the learned Munsiff dismissed the application filed by the defendant for removing the advocate commissioner appointed in the case. I do not find any impropriety or illegality in Ext.P11 order passed by the learned Munsiff. So far as the challenge raised against Ext.P13 order that the commissioner be directed to measure out the property with reference to the plan prepared by the revenue authorities in a land acquisition W.P.(C).No.36691 OF 2009 Page numbers proceeding that also deserve to be taken note of only for its rejection. Whatever be the plan prepared by the revenue authorities in a land acquisition proceedings, that is not the criteria for the court to fix the identification and location of the plaint property for which appropriate orders had already been passed. Challenge against Ext.P13 order also fails. There is no merit in the writ petition, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv