High Court Kerala High Court

Johny vs Kurumba on 22 January, 2007

Kerala High Court
Johny vs Kurumba on 22 January, 2007
       

  

  

 
 
  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.

                       --------------------------

                          W.P.(C)NO.2461 OF 2007

                        -------------------------

             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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