IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(C).No. 1752 of 2010(O) ------------------------- AGAINST THE ORDER DATED 07/08/2009 IN IA 287/2009 IN OS.52/2007 of SUB COURT, KASARAGOD .................... PETITIONER(S): --------------- K.BALAKRISHNA, AGED 50 YEARS, S/O.LATE KUHAMBU, RESIDING AT KOKKAL, KALNAD, UDMA POST, KASARGOD TALUK, KASARGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): --------------- A.ABDUL KHADER, AGED 52 YEARS, S/O.HASSANKUTTY, RESIDING AT BEVINJE, CHENGALA VILLAGE, KASARGOD TALUK, KASARGOD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.1752 OF 2010 (O) ----------------------------------- Dated this the 19th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to set aside Ext.P4 and allow the prayer in I.A.No.287/2009 in O.S.No.52/2007 on the file of the Subordinate Judges Court, Kasargod. 2. Petitioner is the 1st defendant in O.S.No.52 of 2007 on the file of the Sub Court, Kasaragod. Suit is one for setting aside a registered sale deed and the respondent is the plaintiff. Ext.P1 is the copy of the plaint. The learned counsel for the petitioner submits that these petitioners/defendants have filed a written statement resisting the suit claim. At the instance of the respondent/plaintiff, an Advocate commission had been deputed by the court to measure out the property with the assistance of a surveyor. After conducting local WPC.1752/10 2 inspection and measuring out the property with the assistance of the surveyor, the commission has filed a report and plan, to which, the petitioners/defendants raised serious objections seeking for its remission. The learned Sub Judge, after hearing both sides, negatived the objections canvassed by the petitioners/defendants vide Ext.P4 order. Propriety and correctness of Ext.P4 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 respondent/plaintiff is necessary, and hence, it is dispensed with. Serious objections raised by the petitioners/defendants to the commission report and plan have not been properly appreciated and considered by the court, and in fact, such objections are not even adverted to while passing Ext.P4 order, is the submission of he learned counsel for the petitioner. Perusing Ext.P4 order with reference to other WPC.1752/10 3 exhibits tendered and also taking note of the submissions made by the counsel for the petitioner, I find it is not proper and appropriate for this Court to sit in judgment on the merit of a commission report with reference to the objections canvassed by one or the other parties in a suit during the pendency of the suit or proceedings. Commission report is after all a piece of evidence and its value has to be determined with reference to the materials to be tendered in the case. In that view of the matter, I find that no interference with Ext.P4 order is called for invoking the supervisory jurisdiction vested with this court. Further more, it is seen that the suit is one for setting aside a sale deed, and in such a suit, what is the need for a commission to identify the property is also another question that may have to be looked into by the court below, of course, subject to the contentions canvassed by the petitioners/defendants in the written statement. However, there will be a direction to the court below to consider the objections to the Commission report by the petitioners/ defendants in trial, in case the petitioner takes steps to examine the Advocate commissioner and also the surveyor. If WPC.1752/10 4 such steps are taken for the examination of the commissioner and the surveyor untrammelled by any of the observations made in Ext.P4 order, the court below shall consider the report and plan on its merit and pass appropriate orders. Subject to the reservation made as indicated above, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp