IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 32425 of 2009(O) -------------------------- OS.485/2007 of ADDL.M.C.,KOZHIKODE-II .................... PETITIONER(S): --------------- AMBALAPURATH FEBIN MUHAMMED, S/O. CHEKKUTTY, AGED 26 YEARS, VETTERIKKATT PARAMBA, CHERUVANNUR AMSOM AND DESOM KOZHIKODE DIST. BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENT(S): --------------- 1. NANAKKIL MUHAMMED, S/O. KUNHAVARAN, AGED 77 YEARS, VETTERIKKATT PARAMBA, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE DIST. 2. N. BEERANKOYA, S/O. MOYITTY, AGED 57 YEARS, NELLOLI HOUSE, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE DIST. 3. KOZHIKODAN NABEESA, W/O. MUHAMMED, AGED 56 YEARS, 13/498 A, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE DIST. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.32425 OF 2009 ------------------------------------- Dated this the 12th day of November 2009 ---------------------------------------------------------- JUDGMENT Petitioner is the first defendant in O.S No.485 of 2007 on the file of Additional Munsiff Court, Kozhikode. Suit is for recovery of possession and permanent prohibitory injunction, and first respondent is the plaintiff and respondents 2 and 3 are the codefendants. An advocate commissioner deputed by the court with the assistance of a surveyor prepared a report and plan in respect of the matters sought for by the parties which are relevant for adjudication of the disputes involved in the suit. Petitioner/first defendant and also the second defendant moved separate petitions raising their objections to the report and plan and seeking for setting them aside. In the enquiry over the objections raised by these defendants, the commissioner and also the surveyor were examined and the reports and plans exhibited in evidence. The learned W.P.(C).No.32425 OF 2009 Page numbers Munsiff, in the light of the materials tendered in such enquiry and after hearing both sides, remitted the commission report directing the commissioner to inspect the property and carry out the measurement and prepare a plan with the assistance of a fresh surveyor. Ext.P1 is that order. Propriety and correctness of Ext.P1 order is challenged in the writ petition setting forth a case that the report and plan should have been set aside rather than remitted by the court and the order of remission is liable to be interfered with in exercise of the visitorial jurisdiction vested with this court. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, with reference to Ext.P1 impugned order and also other exhibits tendered in the writ petition, I find no notice to the respondents is necessary and hence it is dispensed with. The learned counsel for the petitioner inviting my attention to Ext.P1 order submitted that the commissioner who had been deputed earlier is incompetent and any fresh report through the same commissioner is likely to suffer from the same W.P.(C).No.32425 OF 2009 Page numbers infirmities and mistakes as in the previous report. Further more, the order itself according to the counsel reflects the serious infirmities in the report and plan and that being so, the report and plan should have been set aside and not remitted for further clarification. Perusing Ext.P1 order, I find the learned Munsiff after appreciating the materials tendered in the enquiry over the objections on the report and plan has came to the conclusion that the defects which occurred in the measurement of the property could be cured by sending out the commissioner again and carrying out measurement of the property with the assistance of a fresh surveyor. Evidence on record already collected in the nature of the suit and the reliefs claimed according to the learned Munsiff, is not to be eschewed from consideration and the interest of justice would be served by remission of the report and it need not be set aside. In exercise of supervisory jurisdiction, I find entertaining a challenge against Ext.P1 order which relate to the consideration and appreciation over the merit of a commission report, which at the most is only a piece of evidence among other pieces of evidence for determination of the disputed questions involved in a suit, is W.P.(C).No.32425 OF 2009 Page numbers not proper nor permissible. Submission made by the counsel that the advocate commissioner who previously executed the commission report is incompetent to carry out the work on the face of it cannot be accepted. Preparation of the plan is done by a qualified surveyor and the advocate commissioner is only supervising the work over the measurement done by the surveyor for which expert knowledge over surveying is not wanted. In case the petitioner has any grievance as to the competency of the surveyor to be deputed, he can seek for issue of appropriate directions/orders from the court below for deputing a qualified and competent surveyor even suggesting the appointment of a taluk surveyor, if his services are available. If any such request is made, the court below shall consider it on its merit. Reserving the right of the petitioner to do so, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv