IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2461 of 2007(R)
1. JOHNY, S/O. PARANJUKUTTY,
... Petitioner
Vs
1. KURUMBA, W/O. LATE AYYAPPAN,
... Respondent
2. MANIKANDAN, S/O. KURUMBA,
3. PARVATHY, D/O. KURUMBA,
4. RAJANI, D/O. KURUMBA,
5. GIRIJA, D/O. KURUMBA,
For Petitioner :SRI.P.RADHAKRISHNAN (1)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C)NO.2461 OF 2007
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DATED THIS THE 22nd DAY OF JANUARY, 2007
JUDGMENT
Petitioner is plaintiff and respondent defendant in
O.S.566/98 on the file of Munsiff Court, Vadakkancherry. A
Commission was appointed in the suit. The Commissioner submitted a
report and plan. Petitioner filed I.A.867/01, an application under
Order XXVI Rule 10 of Code of Civil Procedure to set aside the report
and plan. Under Ext.P5 order, learned Munsiff dismissed the
application. It is challenged in this petition filed under Article 227 of
Constitution of India.
2. Learned Counsel appearing for petitioner was heard.
3. Arguments of learned Counsel appearing for petitioner was
that the evidence of PW1, Surveyor shows that Commissioner did not
measure the property on the basis of the measurements shown in the
title deed of petitioner and without measurement, Commissioner
submitted the report and learned Munsiff accepted the report and if
that be so, no purpose will be served by proceeding with the trial of
the suit and without proper identification and the dispute cannot be
settled and therefore Ext.P5 order is to be quashed.
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4. Ext.P5 is an interlocutory order passed in the suit. Just
like another interlocutory order, Munsiff has to dispose the suit
untrammeled by the observations made in Ext.P5. Petitioner is
entitled to challenge the interlocutory order, along with the final
judgment in the suit, if necessary. In exercise of the extraordinary
jurisdiction of this Court under Article 227 of Constitution of India,
Ext.P5 order cannot be interfered with. Petitioner is entitled to
adduce evidence in support of his contentions raised in the
objection. If, after taking evidence, learned Munisff finds that it is
necessary either to appoint a Commission or to remit the report,
Ext.P5 order will not prevent the learned Munsiff from doing so.
Writ petition is disposed.
M.SASIDHARAN NAMBIAR,JUDGE
Acd
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