IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 26604 of 2006(P) -------------------------- AGAINST THE ORDER IN IA 1627/2005 IN OS.422/1999 of MUNSIFF COURT, PARAVUR .................... PETITIONER(S): 3RD DEFENDANT: ---------------------------------------------------- VARGHESE, S/O.DEVASSY, KOTTAKKAL HOUSE, VADUTHALA KARA, CHERANELLORE VILLAGE, KANAYANNUR TALUK. BY ADVS. MR.P.RADHAKRISHNAN, MR.MADHU RADHAKRISHNAN. RESPONDENT(S): PLAINTIFF/IST DEFENDANT/2ND DEFENDANT: -------------------------------------------------------------------------------------------------- 1. T.S.SUMANGALA, W/O.DEVADAS, KANNATTU HOUSE, P.D.ROAD, PALLURUTHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK. 2. BABU, S/O.GOVINDAN, PALAKKAPARAMBIL HOUSE, NEAR NALUVAZHI JUNCTION AND KEDAMANGALAM-EZHIKKARA ROAD, PARAVUR PAKUTHI. 3. B.CHANDRASEKHARA PILLAI, S/O.NARAYANA PILLAI, KAILAS HOUSE, MANJUMEL KARA, ELOOR VILLAGE. R1 BY ADVS.MR.K.JAYAKUMAR, MR.P.B.KRISHNAN. R2&R3 BYADVS.MR.VAKKOM N.VIJAYAN, SMT.VINITHA PRASANNAN, MR.P.ANIYAN, MR.A.S.SACHIN, SMT.REENA.C.STEPHENSON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26604/2006 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPORT AS WELL AS SKETCH FILED BY THE COMMISSIONER. P2: COPY OF THE APPLICATION I.A.1621/2005 FILED BY THE PETITIONER BEFORE THE COURT. P3: COPY OF THE I.A.1600/2006 FILED BY THE PETITIONER BEFORE THE COURT. P4: COPY OF THE ORDER IN I.A.1621/2005 IN O.S.422/1999. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.26604 of 2006 - P --------------------------------- Dated this the 14th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari calling for records leading to the passing of Ext.P4 order and quash the same. ii) To issue a writ of mandamus directing the court below to reconsider Ext.P2 application and further direct the court below to consider an pass orders in Ext.P3 application pending before commending trial in the suit.” 2. Petitioner is the additional third defendant in O.S.No.422 of 1999 on the file of the Munsiff Court, North Paravur. Suit is one for injunction, both prohibitory and mandatory, fixation of boundary and recovery of possession, and the first respondent is the plaintiff. Suit, admittedly, was once decreed ex-parte. Petitioner in the writ petition, is, admittedly, a transferee of the northern property of the plaint schedule during the pendency of the suit. After passing of the ex-parte decree, petitioner moved an application for setting aside that decree and W.P.(C).No.26604 of 2006 - P 2 that being allowed and the decree set aside that he got himself impleaded as additional third defendant in the suit. In the writ petition the challenge is against Ext.P4 order passed by the learned Munsiff declining the request of the petitioner/additional third defendant for setting aside and remitting a commission report and plan prepared by an advocate commissioner appointed by the court in the suit. 3. I heard the counsel for the petitioner and also for the first respondent/plaintiff. 4. At the time of hearing, learned counsel for the petitioner submitted that his grievance is mainly confined to the application filed by him for appointment of a commission to measure and identify his property, which is pending consideration, and irrespective of the order passed under Ext.P4, the court may be directed to consider his application on merit. The learned counsel for the first respondent/plaintiff submitted that in the nature of the relief claimed in the suit and the identification made by the advocate commissioner of the suit property, a further enquiry on the basis of the application moved W.P.(C).No.26604 of 2006 - P 3 by the third defendant, a transferee pendente lite, that too when the challenge is confined to P4 order, is not warranted nor is it permissible under law. So far as P4 order is concerned, I find the court below found after examining the commissioner and also the surveyor that the challenges raised against the report and plan by the petitioner/additional third defendant cannot be accepted. Once a report is accepted by the court, in view of the judicial pronouncement rendered by this Court in Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144), a further enquiry by way of a commission is normally not allowable. Further more, other than filing of a written statement resisting the suit claim, the petitioner/additional third defendant has not sought for any relief by way of a counter claim in the suit. So much so, whether the identification of his property for granting the relief claimed by the plaintiff if necessary may emerge for consideration by the court below in considering his application to identify his property. It is for the court below to examine the merit of the application, a copy of which is produced as Ext.P3 in the writ petition. I leave it open to the court below to examine W.P.(C).No.26604 of 2006 - P 4 the merit of Ext.P3 application, in accordance with law. I make it clear that I am not expressing any opinion on the entertainability of P3 application. Subject to the above observation, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-