IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34099 of 2009(O)
1. SHAJI,S/O.K.P.LAKSHMANAN,
... Petitioner
2. K.P.LAKSHMANAN,
Vs
1. USHA C.KURUP,
... Respondent
For Petitioner :SMT.C.G.BINDU
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :26/11/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.34099 of 2009
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Dated: 26th November, 2009
JUDGMENT
The Writ Petition is filed seeking mainly the following reliefs:
1. To issue a writ in the nature of certiorari or other appropriate writ
to quash Exhibit P6 order dated 22.10.2009.
2. To issue a writ in the nature of mandamus or other appropriate
writ, directing the court below to appoint a Taluk Surveyor to assist
the Advocate Commissioner for the measurement of plaint schedule
properties.
3. To issue a writ in the nature of certiorari or other appropriate writ,
to quash the proceedings of the court below dated 18.11.2009 by
which it has directed the Advocate Commissioner to contact with
phone to appoint a Taluk Surveyor to assist the Advocate
Commissioner.
4. To issue appropriate orders or directions to postpone the
inspection fixed to 28.11.2009 till the appointment of a Taluk
Surveyor.
2. Petitioners are the defendants in a suit for injunction, and the
respondent is the plaintiff. P2 is the copy of the plaint. Petitioners
W.P.C.No.34099/09 – 2 –
have resisted the suit claim by filing P4 written statement, in which
among other contentions, they have also disputed the identity and
description of the plaint property and an application moved by the
respondent/plaintiff for appointment of an advocate commissioner to
locate and measure out the plaint property with the assistance of
taluk surveyor has been allowed by the court. The grievance
espoused by the petitioners is that without seeking the assistance of
the taluk surveyor, the advocate commission deputed by the court is
proceeding to execute the commission order with the assistance of a
private surveyor. Petitioners seek a direction to the court below to
appoint a taluk surveyor to assist the advocate commissioner in
locating and measuring out the property, invoking the supervisory
jurisdiction vested with this court under Article 227 of the
Constitution of India.
3. I heard the learned counsel for the petitioners. Having regard
to the submissions made and taking note of the facts and
circumstances presented, I find no notice to the respondent is
necessary and it is dispensed with. Learned counsel for the
petitioners submitted that even in the commission application moved
by the respondent/plaintiff, a request was made for appointing the
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taluk surveyor to assist the advocate commissioner, but, no orders
thereof were passed by the court while allowing that application.
Advocate Commissioner is proceeding to execute the commission
order with the assistance of a private surveyor and that will cause
injury to the petitioners/defendants is the submission of the counsel.
I do not find any merit in the submissions. If at all, the petitioners
have a case that private surveyor is incompetent to carry out the
measurement, but, only the taluk surveyor, for any reason
whatsoever, it has to be brought to the notice of the learned Munsiff
for issue of appropriate directions/instructions to the advocate
commissioner. Approaching this court and invoking the writ
jurisdiction for issue of directions to the court below to appoint a taluk
surveyor to assist the advocate commissioner cannot at all be
entertained. Reserving the right of the petitioners to ventilate their
grievance, if any, before the court below as provided by law, the writ
petition is closed.
srd S.S. SATHEESACHANDRAN, JUDGE