IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6807 of 2009(O)
1. CHERUKAVU LAND DEVELOPMENT PVT.LTD.,
... Petitioner
Vs
1. AHAMMEDKUTTY HAJI,S/O.MANGHATTU PARAMBAN
... Respondent
For Petitioner :SRI.HARISH R. MENON
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.6807 of 2009 - O
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Dated this the 18th day of November, 2009
J U D G M E N T
Petitioner is the plaintiff in O.S.No.246 of 2006 on the file of
the Munsiff Court, Parappanangadi. Suit is one for injunction and
the respondent is the defendant. Respondent filed written
statement resisting the suit claim in which among other
contentions the identity of the suit property was also disputed.
At the instance of the plaintiff an advocate commissioner
conducted local inspection, measured out the property with the
assistance of a surveyor and filed report and plan. Previously
two reports had also been filed by the commissioner, but, one of
them filed with a rough sketch alone. Plaintiff had some serious
objections to the survey measurements and identification made
and also a grievance that some points sought to be ascertained
were not considered by the advocate commissioner while filing
the report and plan. Petitioner/plaintiff thereafter moved an
application for setting aside the report and plan raising objections
to the report and setting it aside. Learned Munsiff after hearing
W.P.(C).No.6807 of 2009 – O
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both sides declined the request of the petitioner/plaintiff vide
Ext.P6 order. Propriety and correctness of Ext.P6 order is
challenged in the writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
2. I heard the counsel for the petitioner.
3. Having regard to the submissions made and taking
note of the facts and circumstances presented, I find it is not
proper and appropriate for this Court to examine the merit of the
objections canvassed by the petitioner/plaintiff to the commission
report which had been declined by the court below vide Ext.P6
order. It is seen from Ext.P6 order that the court below declined
the request of the petitioner/plaintiff for the reason that the case
has been included among the targeted cases for disposal.
Another reason that weighed with the court, it appears, was that
three commission reports had already been collected in the case.
The learned counsel for the petitioner submits that the present
report was the only one prepared after carrying out the survey
measurements, and the previous one is grossly insufficient to
identify the plaint property, which is disputed by the defendants.
W.P.(C).No.6807 of 2009 – O
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I do find some force in the submission made by the counsel for
the petitioner that the reason set out in Ext.P6 order for
nonconsidering the objections raised by the petitioner/plaintiff to
the commission report is not correct. There will be a direction to
the court below to consider the objections raised by the plaintiff
to the commission report and plan at the trial in case the
petitioner/plaintiff take steps for examining the commissioner
and also the surveyor to substantiate the objections. In the
event of the objections being found sustainable after taking
evidence, needless to point out the court has to pass appropriate
orders for remitting the report or seeking further clarification
from the commissioner as the case may be. In having such an
enquiry at trial none of the observations made in Ext.P6 order will
have any bearing. Reserving the right of the petitioner to
canvass the challenges made in the objections at the trial stage,
the writ petition is closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-