IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 9505 of 2009(O) ------------------------- OS.170/1998 of MUNSIFF COURT, ALATHUR .................... PETITIONER(S): --------------- KRISHNANKUTTY, S/O.ANGALAN, POKKATHA VEETTIL, THENKURUSSI AMSOM, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.T.K.CHINNAN RESPONDENT(S): --------------- 1. GANGA, D/O.KAMBI, POKKATHA VEETTIL, THENKURUSSI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 2. VASU, S/O.ANGALAN, POKKATHA VEETTIL, THENKURUSSI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------- W.P.(C).No.9505 of 2009 ------------------------------------ Dated this the 25th day of March, 2009 JUDGMENT The Writ Petitioner, who is the first defendant in O.S.No.170 of 1998, on the file of the court of the Munsiff of Alathur, challenges the order dated 6th March 2009 in I.A.No.1046 of 2008, by which the court below dismissed the application for remitting the Commissioner’s report and plan. The suit was filed by the first respondent for mandatory injunction and for recovery of possession. A Commissioner was appointed in the suit. He filed the report and plan after inspecting the property with the assistance of the District Superintendent of surveys. Though an application was filed by the defendants to set aside the Commissioner’s report and plan, that application was dismissed by the trial court. The order passed by the trial court was confirmed in revision. However, it was observed that the objections to the report and plan could be established at the time of trial and that the order passed in the application would not preclude the court from considering the WPC No.9505/2009 2 objections. 2. Thereafter, the suit was taken up for trial. During the course of trial, it was revealed that there are certain infirmities in the Commissioner’s report and plan and that further elucidation is necessary. Accordingly, the report and plan were set aside. An experienced Commissioner was appointed. He inspected the property and filed report and plan. The inspection was made with reference to the survey records and also with reference to the title deeds. The old resurvey records were also taken note of by the Commissioner. The petitioner filed I.A.No.1046 of 2008 to remit the Commissioner’s report and plan. The court below considered all the objections raised to the report and plan and held that the objections are not established. The court below also noticed that the Commissioner or the surveyor was not examined at the instance of the petitioner and that there is no ground to remit the Commissioner’s report. It was, however, noticed in the order that if any infirmity in the Commissioner’s report is noticed during the evidence stage in the suit, the objections can be considered at that stage. WPC No.9505/2009 3 3. The order passed by the court below, to my mind, does not suffer from any infirmity. There is no error of jurisdiction. The court below has considered all the facts and circumstances and the materials on record. The rights of the petitioner are safeguarded. As held in Kanaran Nair vs. Madhavan Nair (1996(1) KLT 162), the order dismissing an application for setting aside the Commissioner’s report or for remitting the Commissioner’s report is interlocutory in nature and nothing in the order would trammel the trial court from taking a different view if otherwise satisfied at a subsequent stage. It was also held that the parties are entitled to use other evidence including materials elicited through examination of the Commissioner as a witness for satisfying the court that findings in the report are faulty. The petitioner would be entitled to examine the Commissioner at the trial stage and as observed by the court below, the question can be considered at the trial stage. With these observations, the Writ Petition is dismissed. K.T.SANKARAN, JUDGE csl