IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 21360 of 2009(O) -------------------------- I.A.NO.634/08 IN OS.106/2006 of SUB COURT, THIRUVALLA .................... PETITIONER(S): -------------------------- A.V.KURIAN, S/O.KURIAN, ANCHEKKARA VEETTIL,VAIPUR, KOTTANGAL VILLAGE. BY ADV. MR.R.GIREESH VARMA RESPONDENT(S): ---------------------------- SUSEELA RAJAN, VAVARKUNNIL VEETTIL,KULATHOOR NADUBHAGOM MURI, KOTTANGAL VILLAGE,MALLAPPALLY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.21360 OF 2009 -------------------------- Dated this the 29th day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P1. ii) Issue a writ or mandamus or any other appropriate writ, order or direction, directing the Munsiff Court, Thiruvalla to remit the commission report and direct the commissioner to ascertain the matters sought to be ascertained by the defendant in the suit. W.P.(C).No.21360 OF 2009 Page numbers iii) Issue such other writs order or directions which this Hon'ble Court deems fit and proper in the facts and circumstances of the case. 2. Petitioner is the defendant in O.S 106/2006 on the file of the Sub Court, Thiruvalla. Suit is for money and also for mandatory injunction. Suit claim was based on an agreement between the parties to construct a building in the property of the husband of the plaintiff by the defendant. There was default on the part of the petitioner / defendant to do the work in terms of the agreement and thereby the plaintiff sustained damages was the basis of the claim. In the suit an advocate commissioner was appointed to determine the matters sought for by both parties with the assistance of an expert. To the report filed by the commissioner, petitioner / defendant raised objections and the learned Sub Judge after enquiry W.P.(C).No.21360 OF 2009 Page numbers in which the commissioner was examined negatived his request for setting aside the commission report. Ext.P2 is the copy of that order. Propriety and correctness of Ext.P2 order is challenged in the 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 respondents is necessary and hence it is dispensed with. A commission report is after all a piece of evidence collected in a suit or proceeding to assist the court in adjudicating the issues involved and the acceptability or rejection of that piece of evidence by that court cannot be challenged by way of a writ petition as it is open to the party to W.P.(C).No.21360 OF 2009 Page numbers impeach its correctness in case any adverse is passed in the suit or proceeding in the appeal, if need be. On that solitary ground itself the writ petition filed challenging Ext.P2 order is found to be not entertainable. However after going through Ext.P2 order, I find the learned Sub Judge has not adverted to the evidence of the commissioner, nor the objections raised by the petitioner / defendant to the report. The only objection that appears to have been considered is whether the visit of the commissioner second time without notice to the petitioner is condonable or not. When Ext.P2 order has been passed without going to the merits of the objections raised holding that the commission report is not liable to be set aside on the objections raised by the petitioner I find if no appropriate directions are given by this court, it may affect the fair disposal of the suit. So much so, it is ordered that irrespective of Ext.P2 order W.P.(C).No.21360 OF 2009 Page numbers and observations made thereunder, the merit of the commission report shall be examined in the trial of the suit with reference to the objections already filed by the petitioner and appropriate decision thereof has to be taken by the learned Sub Judge. Ext.P2 order passed by the court below that the report is not liable to be set aside in the circumstances cannot be treated as final. If any infirmity in the report is found after examining the commission with respect to the objections raised, Ext.P2 order will not stand in the way of the court in passing appropriate orders or directing the commissioner to file further report for rectifying deficiency, if any. Subject to the above observations the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv