IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 32968 of 2009(O) -------------------------- AGAINST THE ORDER IN I.A.2008/09 IN OS.187/1987 of MUNSIFF COURT, PUNALUR .................... PETITIONER(S): --------------- IDIKKULA MATHAI, MANJAPPALIL BUNGLOW,KARUKONE, ALAYAMON VILLAGE,PATHANAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- M.HABEEBULLAH, T.C.28/2840,KUTHIRAVATTOM LANE,KUNNUMPURAM, THIRUVANANTHAPURAM,FROM KOTTAVILA HOUSE, KANNAMKODU,ALAYAMON VILLAGE,PATHANAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.32968 OF 2009 (O) ----------------------------------- Dated this the 17th day of November, 2009 J U D G M E N T Petitioner is the defendant in O.S.No.178 of 1987 on the file of the Munsiff Court, Punalur. Suit is for declaration of title and possession, fixation of boundary and consequential injunction, and the respondent is the plaintiff. Challenge raised in the writ petition is against Ext.P6 order of the court declining the request of the petitioner/defendant for setting aside the commission report in the suit, collected, which instituted more than two decades ago, after setting aside of the previous judgment and remand by the 1st appellate court, awaits for trial and its disposal. 2. 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 respondent is necessary, and, hence, it is dispensed with. WPC.32968/09 2 Ext.P6 order passed by the learned Munsiff is challenged by the learned counsel for the petitioner contending that Ext.P2 application raising objections to the commission report seeking for setting aside that report require to be considered before trial of the suit. The order of the learned Munsiff posting the petition with the suit, according to the counsel, is vitiated by procedural irregularity and it tantamounts to the directions given in Bhaskaran v. Kamalakshi and Others (2008 (4) KHC 203) as to how an application moved to set aside a commission report and plan has to be dealt with. This Court in the above reported decision has held that a petition moved to set aside the report and plan has to be disposed of before recording of the evidence in the suit, and so much so, Ext.P6 order cannot be sustained and is liable to be set aside, is the submission of the counsel. Taking note of the facts and circumstances involved in the case as evidenced by Ext.P6 order and other exhibits tendered in the writ petition, I find no impropriety or illegality in the order passed by the learned Munsiff to consider the petition moved by the defendant for setting aside the report in the trial of the suit. A court cannot WPC.32968/09 3 be oblivious to the pendency of the case for the last more than two decades when requests are made for pretrial enquiry on the merit of the commission report collected to enable the court to determine the disputed question arising for adjudication. Primarily, a commission report is collected to assist the court in unravelling the disputed issues to have a fair and proper disposal of the suit or proceedings. It is seen from Ext.P2 judgment rendered by the appellate court dated 3.11.2007 that a specific direction was given to the court below to dispose the suit within six months from the date of appearance of the parties on remitting of the case after setting aside the previous judgment passed in the suit. Nearly two years have passed after the rendering of that appellate court judgment but the suit still remains on the file of the Munsiff Court. Commission report is after all only a piece of evidence and its value has to be adjudged and examined with reference to other materials tendered in the case. It cannot be stated that in all cases where an application is moved for setting aside a commission report an enquiry thereof has to be conducted before recording of the evidence in the case. WPC.32968/09 4 Adopting that course may sometimes, that too in all cases, will only delay and protract the completion of its trial and disposal. In the decision reported by the counsel with reference to the facts presented in that case, this Court has held that the application moved for setting aside the commission report and plan require to be considered before recording of the evidence in the suit. The decision cannot be taken as laying down the procedural compliance in all cases for consideration of the petition filed for setting aside the commission report and plan before proceeding with the trial of the suit or proceedings. There is no merit in the writ petition and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp