Kerala High Court
Sarojini vs Karthiyani Amma on 7 December, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35091 of 2009(O)
1. SAROJINI,D/O.LATE KALYANIKUTTY AMMA,
... Petitioner
Vs
1. KARTHIYANI AMMA,W/O.KIZHUVEETTIL
... Respondent
2. SURENDRAN,S./O.KIZHUVEETTIL NARAYANAN
3. SUKUMARAN,S/O.KIZHUVEETTIL NARAYANAN
4. RADHA,D/O.KIZHUVEETTIL NARAYANAN NAIR,
5. SATHY,D/O.KIZHUVEETTIL NARAYANAN NAIR,
6. JAYA,D/O.KIZHUVEETTIL NARAYANAN NAIR,
7. PARUKUTTY AMMA,W/O.KIZHUVEETTIL
For Petitioner :SRI.V.BINOY RAM
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :07/12/2009
O R D E R
C.R.
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.35091 OF 2009 (O)
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Dated this the 7th day of December, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following reliefs:
i. to issue a writ of mandamus or any other writ or order calling for the records leading to Ext.P7 order and quash the same as it is violative of natural justice and through Ext.P7 the court below has passed final order in the suit.
ii. to issue appropriate writ, order or direction for allowing Ext.P6.
iii. to issue appropriate writ or order directing the court below for instructing the commissioner for remeasuring the properties of the petitioner and the respondents as per their title deeds and side measurements shown in Ext.P4 as it is highly necessary for deciding the real dispute in the case.
2. Petitioner is the 2nd plaintiff in O.S.No.1318 of 2006 WPC.35091/09 2 on the file of the Principal Munsiff Court, Thrissur. Suit is for fixation of boundary, and the respondents are the defendants. On the application moved by the plaintiff, an Advocate Commissioner deputed by the court measured out the property with the assistance of the surveyor and filed a report and plan. Plaintiff, raising objections to that report, sought for setting it aside by filing Ext.P6 application. In the enquiry on that application, the Commissioner and also the surveyor were examined. The learned Munsiff, after hearing both sides, dismissed Ext.P6 application for setting aside the report and plan prepared by the Advocate Commissioner. Propriety and correctness of that order is challenged in the writ petition 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. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. A commission report is after all a piece of evidence, the merit WPC.35091/09 3 and value of which has to be appreciated with reference to the other materials to be tendered in the case. Whatever be the objections canvassed by the petitioner to the commission report and plan, any order passed by the trial court as to whether the report has to be accepted or set aside or remitted for fresh consideration for further clarification cannot be challenged before this Court invoking its supervisory jurisdiction unless it is shown the order passed thereof suffered from such infirmity which if not corrected will result in grave injustice. Normally any order passed over a commission report is a matter to be considered with reference to the merit of the decision to be rendered in the suit or proceeding by the court. If at all the petitioner has any objection to the report and plan, such challenges can be canvassed in the appeal, in case, any adverse decision is rendered against the petitioner in the suit after a full fledged trial. A party to the proceedings or suit cannot impeach the correctness of the findings entered by the court below on the merit of the commission report before this Court invoking its extraordinary jurisdiction subject to the exception indicated WPC.35091/09 4 above as any enquiry thereof and finding entered is likely to cause prejudice, and more so, affect the fair trial of the suit. Perusing the impugned order with reference to the submissions made by the learned counsel, I find no ground has been made out for interfering with the order in exercise of the extraordinary jurisdiction vested with this Court. I find that the challenges canvassed in the writ petition against the order of the court below negativing the objections raised to the commission report and plan by the commissioner cannot be entertained. Writ petition lacks merit, and it is dismissed.
S.S.SATHEESACHANDRAN JUDGE prp