IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21808 of 2009(O)
1. KARONTHAN VEETTIL GANGADHARAN,
... Petitioner
Vs
1. MEENANKADA RAMACHANDRAN, AGED 40 YEARS,
... Respondent
For Petitioner :SRI.P.U.SHAILAJAN
For Respondent :SRI.MATHEW KURIAKOSE
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :12/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.21808 of 2009 - O
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Dated this the 12th day of August, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
“1) To issue a writ of certiorari or other appropriate
writ or direction and quash the original of Exhibit P8
order passed by the Munsiff Court, Thaliparamba.
ii) To issue a writ of mandamus or other
appropriate writ or order and allow the
I.A.No.1835/2009 and remit the commission report to
the same commissioner with a direction to inspect the
property and report about the facts stated by the
petitioner in Exhibit P6 and also as per the work
memo.
2. Petitioner is the defendant and the respondent, the
plaintiff in O.S.No.222 of 2006. Suit is one for perpetual
prohibitory injunction. A commissioner appointed by the court,
after conducting inspection and measuring the property with the
assistance of a surveyor filed report and plan to which the
petitioner/defendant filed objections. The learned Munsiff, after
hearing both sides, negatived the objections raised by the
W.P.(C).No.21808 of 2009 – O
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petitioner vide P8 order. Propriety and correctness of P8 order is
challenged in the writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
3. I heard the counsel on both sides.
4. From the submissions made and taking note of the
facts and circumstances presented, I find that P8 order impugned
in the petition cannot be sustained. It is reported that no
opportunity was provided to the petitioner/defendant to
substantiate his objections to the commission report by
examining the commissioner. There was also no posting for that
purpose. The learned Munsiff straight away heard the matter and
negatived the objections. That cannot be appreciated. When
objections are raised to a commission report, parties should be
given an opportunity to substantiate such objections by
examining the commissioner. Merit of the objections to a
commission report without examining the commissioner and the
surveyor, very often may cause grave injustice. Material aspects
to substantiate objections can be brought out only by examining
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the commissioner and the surveyor. P8 is therefore liable to be
set aside and I do so. But, I make it clear that the merit of the
report has to be gone into at the time of trial and if the parties to
the suit seek for examining the commissioner and also the
surveyor, at that stage, it shall also be allowed. In case the court
finds that the report and plan suffers from any infirmity it has to
pass appropriate orders as required to meet the ends of justice.
Subject to the above observations, the writ petition is
disposed of.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-