IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 OP(C).No. 515 of 2010(O) ------------------------ OS.157/2007 of SUB COURT, PAYYANNUR .................... PETITIONER ------------------- CIRIYAC KAVANADIYIL, S/O.MANI, AGED 60 YEARS, KAVANADIYIL HOUSE, CHEMPERI P.O., ERUVESSY AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KANNUR. 670001. 2. THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT (ROADS), KANNUR.670001. 3. P.K.RAJU, EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS), KANNUR.670001. 4. DIVAKARAN, ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS), IRIKKUR, KANNUR DISTRICT.670142 5. SHADULI, ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS), TALIPARAMBA, KANNUR DISTRICT. 670141 6. C.A.MUHAMMED, PUBLIC WORKS DEPARTMENT CONTRACTOR, ERUVESSY AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 670141 7. MUHAMMED HANEEFA, WORKS SUPERINTENDENT C.A.CONSTRUCTIONS, ERUVESSY AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.67O141 BY GOVERNMENT PLEADER SRI.T.K.SAJEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 515 of 2010(O) --------------------------------- APPENCIX --------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE PLAINT IN O.S. NO.157/07 OF SUB COURT, PAYYANNUR. EXT.P2. COPY of the COMMISSIONER'S REPORT IN O.S. NO.72/06 F MUNSIFF COURT, TALIPARAMBA. EXT.P3. CPY of the PETITION IN IA NO.508/2010 IN OS. NO.157/07 OF SUB COURT, PAYYANNUR. EXT.P4. COPY OF THE ORDER IN IA NO508/2010 IN O.S. .157/07 OF SUB COURT, PAYYANNUR DATED 24.3.2010. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P.JOSEPH, J. ==================================== O.P(C) No.515 of 2010 ==================================== Dated this the 26th day of July, 2011 J U D G M E N T Plaintiff in O.S. No.157 of 2007 of the court of learned Sub Judge, Payyannur, aggrieved by Ext.P4, order dated March 24, 2010 on I.A. No.508 of 2010 has filed this Petition. Petitioner filed that suit for damages and other reliefs. The Advocate Commissioner appointed in the case submitted report and plan. While so, the second respondent as per I.A. No.508 of 2010 (Ext.P3) requested to remit the report and plan and obtain a new report and plan. Learned Sub Judge considered that application, set aside the earlier report and plan and appointed a new Commissioner to submit report and plan. That order is under challenge. Learned counsel submitted that there was no challenge to the report already filed, complaint of second respondent being only that certain points are not noted, there was also no prayer to set aside the earlier report and in the circumstances learned Sub Judge has exceeded his jurisdiction in setting aside the earlier report and plan. Learned Government Pleader submitted that the newly appointed Commissioner has O.P(C) No.515 of 2010 -: 2 :- already inspected the property and submitted a report and plan. It is also submitted that Ext.P3 is not the copy of application that second respondent had preferred for appointment of a new Commissioner. 2. I have gone through Ext.P4, order. In that order learned Sub Judge has stated that the earlier Commissioner is now appearing as junior to the counsel of petitioner and that the counsel admitted that he is junior to the counsel appearing for petitioner though he claimed that he was not a junior to the counsel for petitioner at the time of submitting the report and plan. It is seen from the order that respondents disputed and contended that even at the time of submission of the report the Advocate Commissioner was a junior to the counsel for petitioner. Learned Sub Judge considered the contentions and thought it appropriate that the earlier report and plan be set aside and a new Commissioner be appointed. 3. It is not as if the court is powerless to set aside a report notwithstanding that any of the contesting parties did not prefer objection. Nor is the court bound to accept the report because either parties did not object to it. These are matters within the power of the court. Even in Ext.P3, assuming that is O.P(C) No.515 of 2010 -: 3 :- the copy of application filed by the second respondent, it is stated that vital aspects of the case has not been reported by the Commissioner, the plan submitted along with the report hide vital facts of the case and the Advocate Commissioner failed to note the length between CD line in the plan and the road drainage which remained unrevealed and thus adversely affected case of respondents. It was therefore prayed that the existing report has to be remitted and a fresh report and plan has to be obtained. Having regard to the facts and circumstances learned Sub Judge thought it fit to appoint a new Commissioner. Considering the above facts and circumstances and the fact that the new Advocate Commissioner has already submitted report and plan (as the learned Government Pleader has submitted) I am not inclined to interfere with the impugned order. Original Petition fails and is dismissed. THOMAS P. JOSEPH, JUDGE. vsv