IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 OP(C).No. 1328 of 2010(O) -------------------------------------- I.A.NO.3166/2010 IN OS.676/1991 of PRL. MUNSIFF COURT, IRINJALAKUDA .................... PETITIONER: -------------------- RAJAN, S/O.NOCHIYIL CHENNANKUTTY, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): -------------------------- 1. THANKA, W/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. 2. LEELA NARAYANAN, D/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. 3. LATHA SATHYAN, D/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. 4. SAJEEVAN, S/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. 5. JAYANTHY PREMAN, D/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. 6. SREENIVASAN, S/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. 7. RAJEEV, S/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. 8. SHAJAN, S/O.NOCHIYIL MANIKYAN, MANNAMPETTA, VARAKKARA P.O.-680 325, THRISSUR DISTRICT. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs K.T.SANKARAN, J. ------------------------------ O.P(C).No.1328 OF 2010 ------------------------------ Dated this the 3rd day of January, 2011 JUDGMENT The plaintiff in O.S.676 of 1991 on the file of the Court of the Principal Munsiff, Irinjalakuda challenges Ext.P3 order dated 4th November, 2010 in I.A.No.3166 of 2010 by which the Court below rejected the prayer to remit the Commissioners report or in the alternative to appoint another Commission. 2. It is submitted by the learned counsel for the petitioner that O.S.No.676 of 1991 filed by the petitioner was originally dismissed and the Appellate Court remanded the case to the trial court for fresh disposal, as per the common judgment in A.S.Nos.53 of 1994 and 54 of 1994 on the file of the Court of Principal Subordinate Judge, Irinjalakuda. It is also stated that the first respondent's husband had filed O.S.No.11 of 1991 and that suit was decreed by the trial court. On appeal, as per the common judgment O.P(C).No.1328 OF 2010 2 referred to above, the case was remanded to the trial court for fresh disposal. 3. After remand of the suits, the Commissioner inspected the property and filed reports. The suits are of in the year 1991. The court below passed a detailed order and it was held that there is no necessity to remit the Commissioner's reports or to appoint another Commissioner. 4. The learned counsel for the petitioner submitted that the court below has considered the merits of the suits and rendered findings thereon which may ultimately cause prejudice to the petitioner. It is also submitted that as held by the Division Bench in Kanaran Nair v. Madhavan Nair (1996(1) KLT 162), dismissal of the application should not debar the trial court from considering the question at the time of trial. 5. In Kanaran Nair v. Madhavan Nair (1996(1) KLT 162) the Division Bench held that at the time of trial, the O.P(C).No.1328 OF 2010 3 court would be entitled to scrutinize the whole issue and if necessary the Commissioner can be directed to inspect the property again, in spite of the dismissal of the application for setting aside the Commissioners report. In view of the judgment of the Division Bench, I do not think the challenge against the order passed by the court below can be sustained. At the same time, it is made clear that the findings and observations rendered by the court below in the order impugned would not stand in the way of the petitioner or any other party from putting forward their respective contentions at the time of trial. In other words, no findings or observations in the order impugned should be treated as final at the time of trial. With the above observations, the Original Petition is dismissed. K.T.SANKARAN, JUDGE. cms