IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 21602 of 2009(O) -------------------------- OS.389/2007 of MUNSIFF COURT, KOCHI .................... PETITIONER(S): ---------------------- SATHEESAN, AGED 35 YEARS,S/O.NARAYANAN, NIKATHUTHARA HOUSE,KIZHAKKEAPPANGADU, NJARAKKAL P.O. BY ADV. MR.C.P.PEETHAMBARAN RESPONDENT(S): ----------------------- 1. KUMARI, AGED 38 YEARS, D/O.APPUKUTTAN,CHANGATTUTHARA, KIZHAKKEAPPANGADU,NJARAKKAL P.O. 2. AMMINI, AGED 35 YEARS,D/O.APPUKUTTAN,CHANGATTUTHARA, KIZHAKKEAPPANGADU,NJARAKKAL P.O. 3. ANIL, AGED 33 YEARS,S/O.APPUKUTTAN,CHANGATTUTHARA, KIZHAKKEAPPANGADU,NJARAKKAL P.O. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.21602 OF 2009 -------------------------- Dated this the 31st day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Direct the Principal Munsiff Court, Kochi to dispose Ext.P4 the prayer for setting aside Ext.P3 Commissioner's Report and Plan before the trial of the suit begins. ii) Issue such other writ, order or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of this case and in the interest of justice. W.P.(C).No.21602 OF 2009 Page numbers 2. Petitioner is one among the defendants namely third defendant in O.S 389 of 2007 on the file of the Munsiff Court, Kochi. Respondents are the plaintiffs in that suit which is one for fixation of boundary and for injunction both perpetual and mandatory. An advocate commissioner appointed by the court with the assistance of a surveyor measured the property and filed a report and plan on the matters arising for adjudication in the suit. Petitioner along with the other defendants filed objections jointly against the report and plan prepared by the commissioner. Among other contentions it was urged that no notice was issued by the commissioner before conducting of local inspection to the defendants or their counsel. The learned Munsiff after hearing both sides came to the conclusion that evidence is required to examine the merit of the objections raised against the report and adjourned its W.P.(C).No.21602 OF 2009 Page numbers consideration with the trial of the suit. Propriety and correctness of that order is impeached in the 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 also taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and hence it is dispensed with. The commission report is after all a piece of evidence to be let in a case which has to be appreciated with other materials produced for entering findings on the issues raised in the suit. An appreciation of any piece of evidence let in a suit while the matters or issues remain to be adjudicated by the trial court on whatsoever be the ground cannot be entertained and it is also not permissible in W.P.(C).No.21602 OF 2009 Page numbers exercise of the supervisory jurisdiction vested with this court. This court has held in 'Mytheen Kunju v Azeez Kunju' (1992(1) KLT 713) that even in exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure it is impermissible to evaluate the correctness of an order passed by a trial court as to the acceptability or not of a report before the suit is disposed by judgment. Any party aggrieved by the order of the trial court with respect to the admissibility of that piece of evidence, no doubt, will get an opportunity to challenge that question if at all an adverse decision is entered against them in the appeal to be filed against the decree and judgment of the trial court. Notice has not been given by the commissioner before conducting a local inspection to the defendant and also the counsel canvassed by the learned counsel for the petitioner does not impress me. Even if notice is W.P.(C).No.21602 OF 2009 Page numbers not given by the commissioner, a report prepared by the commissioner deputed by the court to collect such evidence forms part of the record and its acceptability depends on the examination of the commissioner as a witness before the court to prove that report. Copy of the commission report produced in the petition would show as per the statements recorded by the commissioner some of the defendants were present on both his visits and their counsel on one such visit. Whatever be the merit of the challenge raised by the petitioner that there was no such presence it is to be determined in evidence and that objection cannot be accepted on its face value where the report of the commissioner shows otherwise. After all the learned Munsiff has only adjourned the enquiry on the objections raised over the report, filed by the defendants including the petitioner, to a later stage to be considered at the time of the trial of W.P.(C).No.21602 OF 2009 Page numbers the suit. I find the learned Munsiff has also expressed his view in unequivocal terms if the objections are found sustainable petition of the defendants will be allowed. When that be so, I do not find any merit in the present writ petition, which is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv