IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JULY 2005 / 6TH SRAVANA 1927 WP(C).No. 31168 of 2005(I) -------------------------- AGAINST THE ORDER IN IA 1742/05 IN OS.220/1997 of MUNSIFF COURT, MANJERI .................... PETITIONER: ------------ KHADEEJA, AGED 45 YEARS, D/O. THEVASSERY ABDULLA, KUNIMEL CHOLAYIL HOUSE, VASHAKKAD P.O., MALAPPURAM DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: ------------- 1. OOTTIKKAL ALI, AGED 43 YEARS, S/O. MUHAMMED, ERANAD TALUK, CHERUVAYUR AMSOM, DESOM, MALAPPURAM DISTRICT. 2. OOTTIKKAL ABDUL KAREEM, AGED 48 YEARS, S/O. MUHAMMED, ERANAD TALUK, CHERUVAYUR AMSOM, DESOM, MALAPPURAM DISTRICT. 3. AYAMKUDI KUNJARAMMU, AGED 68 YEARS, S/O. KOIMMED, RESIDING AT PALAPRA, ERANAD TALUK, CHERUVAYUR AMSOM, DESOM, MALAPPURAM DISTRICT. 4. BASHEER, AGED 38 YEARS, S/O. AYAMKUDI KUNJARAMMU, RESIDING AT PALAPRA, ERANAD TALUK, CHERUVAYUR AMSOM, DESOM, MALAPPURAM DISTRICT. 5. FAISAL, AGED 43, S/O. AYAMKUDI KUNJARAMMU, RESIDING AT PALAPRA, ERANAD TALUK, CHERUVAYUR AMSOM, DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.SAJU.S.A FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON 28/07/2005 DELIVERED THE FOLLOWING: APPENDIX Petitioner's Exhibits:- Ext.P1:- A true photocopy of the document No.1378/1986 of SRO, Vazhakkad. Ext.P2:- A true photocopy of the order in I.A.No.831/2005 dated 17.6.2005. Ext.P3:- A true photocopy of the Commissioner's Report dated 9.3.2005. Ext.P4:- A true photocopy of the plan dated 9.3.2005. Ext.P5:- A true photocopy of the affidavit accompanying IA No.1742/2005. Ext.P6:- A true copy of the order in IA 1742/2005. /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 31168 OF 2005 =========================== Dated this the 28th day of July, 2008 JUDGMENT Petitioner is the plaintiff and respondents the defendants in O.S.220/1997 on the file of Munsiff Court, Manjeri. Suit was originally one for permanent prohibitory injunction. Subsequently plaint was amended for mandatory injunction also. A Commission was appointed. Commissioner submitted a report. Petitioner then filed I.A.831/2005 to remit the report. Under Ext.P2 order petition was dismissed granting opportunity to the petitioner to adduce evidence in support of the objections. Subsequently suit was dismissed. Thereafter it was restored to file. Petitioner then filed I.A.1742/2005, an application to remit the report and plan to the Commissioner. Under Ext.P6 order, learned Munsiff dismissed the application holding that the same prayer was rejected as per Ext.P2 order earlier. This petition is filed under W.P.(C)31168/2005 2 Article 227 of the Constitution of India challenging Exts.P2 and P6 orders. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that Commissioner submitted Ext.P3 report only in 2005 and therefore petitioner cannot be found fault for protracting the trial and I.A.831/2005 was dismissed under Ext.P2 for the reason that suit is included in the special list and as the suit was subsequently dismissed for default and restored, I.A.1742/2005 should not have been dismissed on the ground that petition was earlier dismissed. It was argued that learned Munsiff should have remitted the report to the Commissioner to file a correct report and Exts.P2 and P6 orders are to be quashed. 4. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference. 5. Under Ext.P2 order, petition to remit the report to the Commissioner was rejected granting opportunity to the petitioner to adduce evidence in W.P.(C)31168/2005 3 support of the objections. Though one of the reasons shown in Ext.P2 order is that suit was included in the special list, it does not mean that when the suit was dismissed for default and later restored, Ext.P2 order passed earlier to be ignored and report is to be remitted to the Commissioner. 6. On the facts and materials, I do not find any reason to interfere with Exts.P2 and P6 orders. Petitioner is entitled to adduce evidence in support of the objections including cross examining the Commissioner. If by adducing such evidence, petitioner can satisfy the court and court finds that there is defect in the report or the report cannot be relied on, court is competent either to set aside the report or remit the report to the Commissioner. Petitioner is also entitled to challenge Ext.P2 and P6 orders along with the judgment, if it goes against her in the regular appeal. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- W.P.(C)31168/2005 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006