IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15998 of 2009(O)
1. VENUGOPALAN
... Petitioner
Vs
1. ITTICHIRI @ KUTTIMALAU AMMA AND 9 ORS
... Respondent
For Petitioner :SMT.T.D.RAJALAKSHMI
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :10/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.15998 OF 2009 (O)
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Dated this the 10th day of June, 2009
J U D G M E N T
The writ petition is filed under Article 227 of the
Constitution of India seeking the following reliefs:
i. to issue a writ of certiorari or other
appropriate writ order or direction calling
for the records leading to passing of
Ext.P14 and P15 orders passed in
I.A.193/2009 and I.A.191/2009 in I.A.8/2008
in O.S.No.63 of 2006 dated 7.4.2009 of
Munsiff Magistrate Court, Pattambi and set
aside the same;
ii) to issue a writ of mandamus or other
appropriate writ, order or direction,
directing the Munsiff Magistrate Court,
Pattambi to allow I.A.No.913/09 and
I.A.191/09 in I.A.8/2008 in O.S.63 of 2006
as evidenced by Ext.P10 and P12 and
appoint a fresh Commissioner in I.A.8 of
2008;
iii) to grant such other reliefs as this
Honourable Court may deem fit and proper
in the facts and circumstances of the case.
2. Petitioner is the 6th defendant in O.S.No.63/2006 on
WPC.15998/09 2
the file of the Munsiff Magistrate Court, Pattambi. Suit was
one for partition in which a decree was passed allotting the
plaintiffs 10
/18 shares in the suit properties. The house
situated in the plaint schedule property was ordered to be
reserved for defendants 1 to 6 and the 10th defendant, without
valuation. The decree further declared that defendants 7 to 9
are jointly entitled to get one share out of the 18 shares.
Admittedly, now the final decree proceedings are in progress.
An application was moved by the plaintiffs to appoint a
Commission and an Advocate Commissioner was appointed by
the court to measure the suit properties and file a report. The
present petitioner, who is stated to have filed a work memo
before the Commissioner, filed objections to the report
contending that the points to be noted by him have not been
noted and the report prepared by the Commissioner suffers
from serious infirmities. The petitioner applied for setting
aside that report and sketch prepared by the Commissioner, to
which the 2nd plaintiff filed a counter. The learned Munsiff
conducted an enquiry over the objections raised by the
petitioner on the report and sketch prepared and produced, in
WPC.15998/09 3
which the Commissioner was examined as PW1 and his report
and sketch were exhibited in evidence as Exts.C1 and C2.
Pursuant to the enquiry and after hearing the parties, the
learned Munsiff came to the conclusion that the objections
raised by the 6th defendant against the report and sketch are
not well founded and Ext.P14 order was passed overruling the
objections. The 6th defendant has also moved another
application for appointment of a fresh Commission to prepare
a new report and plan, which was also dismissed by the
learned Munsiff in the light of Ext.P14 order. Ext.P15 is the
copy of that order. Challenging the propriety and correctness
of Exts.P14 and P15 orders, the 6th defendant has filed this
writ petition seeking the aforementioned reliefs invoking the
supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
3. I heard the learned counsel for the petitioner.
Objections raised by the 6th defendant to the Commission
report and plan are reiterated by the learned counsel before
me to show that Exts.P14 and P15 orders passed by the
WPC.15998/09 4
learned Munsiff are incorrect and they cannot be sustained. I
do not agree. Petitioner has an alternate efficacious remedy
of challenging the final decree, if any, passed in the
proceedings and in that proceedings, naturally he will get the
right to challenge a Commission report and plan if it suffers
from any infirmity. Writ jurisdiction of this Court under
Article 227 of the Constitution of India cannot be exercised to
examine the correctness of a Commission report and plan
prepared in a final decree proceedings especially where the
order passed by the learned Munsiff, Ext.P14 is seen to be
free from any infirmity. Writ petition is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO. OF 2006 ()
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O R D E R
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23rd March, 2009