IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 9323 of 2009(O) ------------------------- OS.366/2007 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER(S): --------------- CHANDRAN, S/O. KOCHAARA KUNJAANDY, LOKAMALESWARAM VILLAGE, KODUNGALLUR THALUK. BY ADV. SRI.N.RAGHAVA KURUP SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT(S): --------------- 1. RAVINDRAN, PATHIYAASERRY HOUSE, LOKAMALESWARAM VILLGE KODUNGALUR THALUK. 2. RADHAMANI, W/O. RAVEENDRAN, PATHIYAASERRY HOUSE, LOKAMALESWARAM VILLAGE, KODUNGALLUR THALUK. 3. PUSHPA.A.W/O.CHANDRAN, KOCHAARA KUNGAANDY,LOKAMALESWRAM VILLAGE, KODUNGALLUR THALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.9323 of 2009 --------------------------------------------- Dated this the 23rd day of March, 2009 JUDGMENT The petitioner is the first plaintiff in O.S.No.366 of 2007 on the file of the Munsiff's Court, Kodungallur. The suit is for fixation of boundaries. A Commissioner was appointed who filed Ext.P3 report dated 8th April 2008. The plaintiffs did not file any objection to the Commissioner's report. The case was posted for trial in the list. The Commissioner was examined as a witness. Stating that it was brought out in the evidence of the Commissioner that she did not measure the property in accordance with the title deeds and survey records, the petitioner filed I.A.No.415 of 2009 to remit the Commissioner's report and plan. The court below dismissed that application by the order dated 19.3.2009 which is under challenge in this Writ Petition. 2. The court below held that the petition is belated. The petitioner did not file any objection to the Commissioner's report earlier. It is also stated that the Commissioner's report itself WPC No.9323/2009 2 would indicate that the Commissioner has not measured the property as per the survey records and documents and that she was mainly concerned with the physical boundaries noted at the time of inspection. The learned counsel for the petitioner pointed out that paragraph 2 of Ext.P3 Commissioner’s report would indicate that the Commissioner has measured the property with reference to the survey records and boundaries and that it has now come out in evidence that she has not done so. The counsel pointed out that this itself is a sufficient ground to remit the Commissioner’s report and plan. There is some force in this contention. However, I do not think that at this stage, it is proper to entertain the Writ Petition when the trial has already commenced. However, it is made clear that the dismissal of the Writ Petition will not debar the petitioner from establishing that the Commissioner has not done the work properly and that the report and plan submitted by the Commissioner are not really useful for an effectual and complete disposal of the suit. In Kanaran Nair vs. Madhavan Nair (1996(1) KLT 162), a Division Bench of this Court held that an order in an application to set aside or remit the Commissioner’s WPC No.9323/2009 3 report is only interlocutory in nature and nothing contained in it would trammel the trial court from taking a different view if otherwise satisfied at a subsequent stage. Leaving open the right of the petitioner to establish at the trial stage that for a proper, effective and complete adjudication of the dispute it is necessary to remit the Commissioner’s report, the Writ Petition is dismissed. K.T.SANKARAN, JUDGE csl