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CHANDRAMATHY AMMA, W/O.KALLISSERI versus MANNATHARA IYYATHUTTY, W/O.KOYA

High Court of Kerala

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CHANDRAMATHY AMMA, W/O.KALLISSERI v. MANNATHARA IYYATHUTTY, W/O.KOYA - WP(C) No. 29680 of 2006(G) [2006] RD-KL 1975 (28 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 29680 of 2006(G)

1. CHANDRAMATHY AMMA, W/O.KALLISSERI
... Petitioner

2. C.P. VENUGOPALAN, TIRUR TALUK,

3. GEETHA, TIRUR TALUK,

4. SOBHA, TIRUR TALUK,

5. KERALA KUMARI, TIRUR TALUK,

6. C.P. MOHANAN, TIRUR TALUK,

7. C.P. SASIDHARAN, TIRUR TALUK,

Vs

1. MANNATHARA IYYATHUTTY, W/O.KOYA,
... Respondent

For Petitioner :SRI.K.P.MUJEEB

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :28/11/2006

O R D E R

M.SASIDHARAN NAMBIAR, J.

W.P.C.NO.29680 OF 2006 (G)

Dated this the 28 th day of November, 2006.



JUDGMENT

Petitioners are the defendants in O.S.239/00 on the file of Munsiff Court, Tirur. Respondent is the plaintiff. Petitioner filed I.A.536/06, an application under Order XXVI Rule 9 and 10 of Code of Civil Procedure, to remit the report and plan back to the commissioner. Under Ext.P5 order, learned Munsiff dismissed the application which is challenged in this petition and filed under Article 227 of Constitution of India.

2. Learned counsel appearing for petitioners was heard.

3. The argument of learned counsel appearing for petitioners is that the commissioner has not properly demarcated the properties and did not report the western granite wall and hence court below should have remitted the report back to the commissioner as sought for.

4. Learned Munsiff found that report of the commissioner is sufficient to adjudicate the disputes and there is no sufficient reason to remit the report. W.P.C.NO.29680 OF 2006 (G) 2

5. As declared by the Apex Court in Surya Dev Rai v. Ramachandra Rai (2003 (3) KLT 490 SC) even if there is an error of fact or law that by itself is not sufficient to invoke the supervisory jurisdiction of this court under Article 227 of Constitution of India, under the error is manifest and apparent on the fact of the proceedings such as based on clear ignorance of law and a grave injustice or gross injustice has occasioned thereby. Ext.P1 order does not suffer any such infirmity. The free flow of trial cannot be obstructed by invoking the extra ordinary jurisdiction of this court under Article 227 of Constitution of India. Petitioner is at liberty to cross examine the commissioner and adduce evidence in support of his case. Petition is dismissed. M.SASIDHARAN NAMBIAR,

JUDGE.

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Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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