P M RADHA Vs. P M VINOD

JUDGEMENT

(1.) PLAINTIFF in O.S.No.249 of 2010 of the Court of learned Munsiff, Kannur is aggrieved by Ext.P9, order dated April 04, 2011 on I.A.No.718 of 2011 as much as learned Munsiff refused to remit report and plan submittedby the Advocate Commissioner and directed that the deficiency or defect if any in the report and plan could be gone through in the course of further trial.

(2.) THE matter emerges from a suit filed by the petitioner for recovery of possession of plaint B schedule which according to the plaintiff is part of plaint A schedule - 12.5/8 cents and for decree for prohibitory and mandatory injunction with respect to the remaining part of plaint A schedule. According to the petitioner, she got title and possession of plaint A schedule from a sharer who got it as per the final decree in O.S.No.372 of 1994 of the Sub Court, Thalassery. Petitioner alleged that respondent/defendant who has property towards western side of the suit property trespassed into a portion of plaint A schedule (said to be plaint B schedule) and has constructed a building. Respondent contended that the allegations are not true.

(3.) LEARNED counsel for petitioner has contended that Ext.P9, order does violence to the provisions of Order VI, Rule 10 (2) of the Code of Civil Procedure in so much as the enquiry regarding correctness of the report should have been conducted before the case was posted for trial in the list. It is also contended that if the enquiry regarding correctness of the report and plain is embarked upon in the course of trial, parties will be embarrassed in that, objection raised by the parties if found correct, the process of remitting the report and plan has to be repeated and further objection for such report and plan be invited. In the situation, it was appropriate that learned Munsiff considered the objection and remitted the report and plan in the way suggested by the petitioner.