IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 18684 of 2009(O) ------------------------------------ OS.431/2008 of ADDL.M.C.,KOZHIKODE-I .................... PETITIONERS: DEFENDANTS ------------------------------------------- 1. M.PREMANATH, AGED 49, S/O.KUTTIKRISHNAN NAIR, KAIPURATH PARAMBU, KALATHIKUNNU AMOSM DESOM, KOZHIKODE. 2. NALARAJAN, AGED 66, S/O.DAMODARAN NAIR, KAIPURATH PARAMBU, KALATHIKUNNU AMSOM DESOM, KOAZHIKODE. 3. N.MADAVAN NAIR, AGED 65, S/O.APPU NAIR, MEETHAL VEETIL, NADUVALLOOR AMSOM,RAMALLOOR DESOM. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT: PLAINTIFF --------------------------------------- N.SOMARAJA KURUP, AGED 65, S/O.N.K.NARAYANAN UNNITHAN, SREELAKSHMI, KALATHIKUNNU AMSOM DESOM, KOZHIKODE TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dkr S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 18684 OF 2009 O ```````````````````````````````````````````````````` Dated this the 3rd day of July, 2009 J U D G M E N T The defendants in OS.No.431/08 on the file of the Munsiff Court, Kozhikode are the petitioners. The respondent is the plaintiff in the above suit. Suit is one for injunction both perpetual and mandatory. Resisting the suit claim, petitioners/ defendants in their written statement have set up a counter claim for a decree of mandatory injunction. A Commissioner was appointed by the court to measure the properties and to file a report to enable the court to adjudicate the disputes involved in the suit. Accordingly the Commissioner after conducting a local inspection filed a report and plan. Plaintiff filed objections to the report and plan contending that measurements have not been properly taken by the Commissioner, which was supported by the petitioners defendants. However, later, the plaintiff withdrew the prayer for remitting the Commissioner’s report submitting that they want only recording of their objections. Petitioners thereupon filed objections to the report and plan contending that the report has to WPC.18684/09 : 2 : be remitted for fresh measurement. The learned Munsiff, after hearing both sides, turned down the request for remitting the report passing Ext.P8 order. Propriety and correctness of that order is challenged by the petitioners invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 2. Having regard to the facts and circumstances presented, I find no notice is necessary to the respondents, and it is dispensed with. The learned counsel or the petitioner submitted that the objections raised to the Commissioner’s report seeking for its remission were turned down by the court for the sole reason the petition was belatedly filed. Serious prejudice would be caused to the petitioners if their objections to the Commissioner’s report are not allowed to be substantiated, according to the learned counsel. Perusing the order, I find that the petitioners filed objections only after the case was listed for trial. The learned counsel for the petitioner offered an explanation that they did not file objections since the plaintiff had already filed objections for remitting the report to which the petitioners also had lend support. So much so, WPC.18684/09 : 3 : the delay which was taken by the court in filing the petition should have been appreciated, and indulgence ought to have been shown to the petitioners, according to their counsel. Whatever that be, it is evident that the case has been listed for trial and only thereafter objections were raised by the petitioners for remitting the report. The learned counsel for the petitioners has also submitted that the case is scheduled for trial tomorrow. Having regard to the reliefs claimed by the parties, both by the plaintiff and the defendants in the suit, necessarily and inevitably the report and plan prepared by the Commissioner has a decisive force in examining whose claim deserves acceptance. So much so, when one of the parties filed objections to the report which was earlier objected to by other party also, the interest of justice demanded extending the parties an opportunity to substantiate their grounds of objection. As it is informed, that the trial of the case is scheduled to commence tomorrow, I am of the view that the interests of the petitioners can be protected by issuing a direction to the court below to give him an opportunity to examine the Commissioner and the Surveyor even if no witness schedule for that purpose had been filed within WPC.18684/09 : 4 : the time limit prescribed by the Rules. The trial now scheduled may continue as such but opportunity is to be extended to the defendant to examine the Commissioner and the Surveyor and in case after recording the evidence the court find that there is some deficiency in the report for remitting it to the Commissioner, needless to point out, appropriate orders thereof have to be passed to have a proper decision in the suit. It is further made clear that whatever objections made by the court in Ext.P8 order shall not be given any weight or any consideration in the decision of the suit or in appreciating the report and plan if the Commissioner and the Surveyor are examined and their evidence recorded in the case on the steps taken by the defendant. Subject to the above observations, the writ petition is closed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge