IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 OP(C).No. 4287 of 2011(O) ----------------------------------- PETITIONER : - ----------------------- MOHAMMED SHABEER, S/O.MOHAMMED SARDAR, AGED 38 YEARS, M.S.STEEL CENTRE, RAILWAY STATION ROAD, EDAPALLY, NORTH VILLAGE, KANAYANNOOR TALUK, EDAPALLY P.O., KOCHI-682024. BY ADV. SRI.BIJU ABRAHAM RESPONDENT : - ---------------------- P.K.ABDUL JABBAR, S/O.LATE MR.P.B.KUNJAMMU MOULAVI, AGED 53 YEARS, PALAKKAPRAMBIL, EDAPALLY NORTH VILLAGE, KANAYANNUR TALUK, EDAPALLY P.O., KOCHI-682 024. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 4287 of 2011(O) APPENDIX PETITIONER'S EXHIBITS : EXT P1 : COPY OF THE COMMISSION REPORT DATED 02.02.2011 WITH THE SURVEY SKETCH FILED IN I.A. NO. 5343 / 2010 IN O.S. NO. 386 / 2008 ON THE FILES OF MUNSIFF COURT, ERNAKULAM. EXT P2 : COPY OF THE PROOF AFFIDAVIT FILED BY THE PLAINTIFF IN O.S. 368 / 2008 DATED 07.10.2011. EXT P3 : COPY OF THE APPLICATION FILED AS I.A. NO. 6743 / 2011 IN O.S. NO. 386 / 2008 ON THE FILES OF MUNSIFF COURT, ERNAKULAM. EXT P4 : COPY OF THE COUNTER AFFIDAVIT FILED IN I.A. NO. 6743 / 2011 IN O.S. NO. 386 / 2008 ON THE FILES OF MUNSIFF COURT, ERNAKULAM. EXT P5 : COPY OF THE ORDER DATED 29.11.2011 IN I.A. NO. 6743 / 2011 IN O.S. NO. 386 / 2008 ON THE FILES OF MUNSIFF COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE DMR/- THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4287 of 2011 --------------------------------------- Dated this 23rd day of December, 2011 JUDGMENT Defendant in O.S.No.386 of 2008 of the Court of learned second Additional Munsiff, Ernakulam challenges Ext.P5, order dated 29.11.2011 on I.A.No.6743of 2011. Respondent filed the suit for recovery of possession on the strength of title. After the Advocate Commissioner submitted report and plan parties went into trial. In the course of the trial Advocate Commissioner was examined. In the examination on behalf of petitioner it came out that Commissioner had not ascertained where deficit in the extent of property of respondent is, and how petitioner was found to be in possession of excess land. After the case was heard, respondent filed I.A.No.6743 of 2011 to remit the report and plan. That application was allowed by the impugned order. Learned Munsiff issued certain directions to the Advocate Commissioner to be complied while further inspecting and measuring the property. 2. It is contended by learned counsel that respondent never had a case of any inadequacy in the report and plan even when he gave evidence and examined the Advocate O.P(C).No.4287 of 2011 -: 2 :- Commissioner and Surveyor but based on answers elicited in the cross examination of Advocate Commissioner the present application is preferred. Learned counsel submits that the directions issued in Ext.P5, order are based on matters for which there is no plea on the side of respondent. 3. The report and plan are used for proper understanding of the dispute between the parties. Assuming that respondent had not requested for remission of the report and plan, it is not as if the Court is powerless to remit it if such a course is found necessary. For, the endeavour of Court is to resolve the dispute between the parties and in that process, it is within the power of Court to direct the Advocate Commissioner to inspect the properties further and file report as to such of the relevant matters as are necessary for a fair and just disposal of the case. In the present case, it would appear that there was some shortfall in the extent claimed by the respondent while there was excess land in the possession of petitioner but, regarding which the Advocate Commissioner or Surveyor had not explored further. That aspect was required to be explored for a proper adjudication of the dispute and hence learned Munsiff allowed I.A.No.6743 of 2011 though at a belated stage. It is O.P(C).No.4287 of 2011 -: 3 :- better to be late than be never. If petitioner has any grievance against the report and plan which the Advocate Commissioner would submit after remission it is open to the petitioner to prefer appropriate objection. If petitioner has a further contention that matters directed to be investigated by the learned Munsiff goes beyond the scope of suit, certainly it is open to the petitioner to appraise learned Munsiff of that situation in the course of trial when the matter is being argued. Without prejudice to the above right of petitioner, this original petition is closed. (THOMAS P. JOSEPH, JUDGE) Sbna/-