IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 365 of 2009(R)
1. MUHAMMED ALI, AGED 62 YEARS
... Petitioner
Vs
1. MAJEED,
... Respondent
2. FASILA
For Petitioner :SRI.P.SANTHOSH (PODUVAL)
For Respondent :SRI.K.A.JALEEL
The Hon'ble MR. Justice K.T.SANKARAN
Dated :05/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C).No.365 of 2009
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Dated this the 5th day of March, 2009
JUDGMENT
The plaintiff in O.S.No.323 of 2005, on the file of the court
of the Munsiff of Kodungallur, is the Writ Petitioner. The suit
was filed for fixation of boundary. The plaint A schedule
property belongs to the plaintiff. The plaint B schedule property
which is situated on the northern side of the A schedule property
belongs to the defendants. A Commissioner (Advocate
K.N.Manoharan) was appointed at the instance of the plaintiff.
The Commissioner filed Ext.P3 report dated 6.4.2005.
I.A.No.1013 of 2006 was filed by the petitioner/plaintiff to
appoint a Commissioner to measure the property in accordance
with the survey. Advocate Suresh Muraleedharan was appointed
by the court who filed Ext.P4 report and plan dated 7.6.2007.
The petitioner/plaintiff filed I.A.No.1689 of 2007 to set aside the
report and plan submitted by Advocate Suresh Muraleedharan.
That application was not disposed of and it was directed to be
taken up along with the suit.
WPC No. 365/2009 2
2. The suit was posted in the list on 9.10.2007. Since the
petitioner did not appear, the suit was dismissed for default. On
23.11.2007, the suit was restored to file. Alleging that the
defendants trespassed into the property, the petitioner filed
I.A.No.236 of 2008 for appointing a Commissioner. That
application was allowed as per Ext.P8 order dated 30.6.2008.
The court below appointed Advocate Suresh Muraleedharan as
the Commissioner. Challenging Ext.P8 order to the extent to
which Advocate Suresh Muraleedharan was appointed, the
petitioner filed Ext.P9 Review Petition. The Review Petition was
dismissed as per Ext.P10 order dated 1st July 2008, which is
under challenge in this Writ Petition. There is no dispute that
Advocate Suresh Muraleedharan was appointed earlier. His
report was not set aside as requested by the petitioner. No
personal bias was alleged against the Advocate Commissioner.
Advocate Suresh Muraleedharan had occasion to inspect the
property with the survey officials and he had filed Ext.P4 report
and plan. There was nothing wrong in appointing the same
Commissioner as per the order in I.A.No.236 of 2008. The court
below was right in rejecting the Review Petition. The contention
WPC No. 365/2009 3
of the petitioner is that Ext.P4 report and plan submitted by the
Commissioner are erroneous and that if the same Commissioner
is appointed, no fruitful purpose would be served. That is not a
ground for not appointing the same Commissioner at a later
stage. The request for setting aside the report and plan
submitted by the Commissioner was not disposed of by the court
below. Therefore, the court below was justified in dismissing the
Review Petition. No interference is called for.
The Writ Petition is devoid of merit and it is accordingly
dismissed.
K.T.SANKARAN,
JUDGE
csl