IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 4678 of 2009(F) OS.145/2006 OF MUNSIFF'S COURT, HOSDRUG PETITIONER: --------------- M.V.KUNHIRAMAN, AGED 78 YEARS, S/O.CHATHU, RESIDING AT CHAYOTH IN KINANOOR VILLAGE, HOSDURG TALUKI, P.O.CHAYOTH. BY ADV. SRI.T.K.VIPINDAS SMT.P.K.PRIYA RESPONDENT: --------------- P.V.ANANDA KRISHNAN, S/O.CHATHU, RESIDING AT CHAYOTH IN KINANOOR VILLAGE, HOSDURG TALUK, P.O.CHAYOTH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4678 OF 2009 F ------------------------------------------------------ Dated this the 11th March, 2009 JUDGMENT The first defendant in O.S.No.145 of 2006, on the file of the Munsiff's Court, Hosdurg, challenges the order dated 10.6.2008 in I.A.No.1839 of 2008, by which the court below rejected the prayer made by the petitioner to remit the Commissioner's report. The suit is for permanent prohibitory injunction. The petitioner disputed the identity of the property. A Commissioner was taken out to establish the identity of the plaint schedule property. The petitioner raised objections to the Commissioner's report. He filed I.A.No.1839 of 2008 to remit the Commissioner's report. That application was dismissed by the court below as per the order dated 10.6.2008, which is under challenge in this Writ Petition. 2. One of the objections raised by the petitioner was that the Commissioner has not property identified the plaint schedule property. The plaintiff is satisfied with the identification made by the Commissioner. The court below noticed that the Commissioner has reported about the physical boundaries of the property in dispute. It was also noticed that the question of title is not very relevant in the suit. The contention of the W.P.(C) NO.4678 OF 2009 :: 2 :: petitioner that the property should be identified with reference to the title deeds was not accepted by the court on the ground that the suit is only for injunction. Various other objections were also raised. The court below thought that it is not necessary to remit the Commissioner's report. 3. The order passed by the court below in the application to set aside the Commissioner's report or to remit the Commissioner's report is only interlocutory in nature. In spite of the rejection of the application, at a later stage, the court can consider the objections to the Commissioner's report and pass appropriate orders, if the court comes to the conclusion that the property has not been properly identified. The petitioner is also entitled to examine the Commissioner at the trial stage. If, after considering the evidence, the court is of the view that further inspection by the Commissioner is necessary, nothing prevents the court from passing appropriate orders. 4. In Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162), a Division Bench of this Court held that the order in an application to set aside the Commissioner's report or to remit the Commissioner's report is only interlocutory in nature and nothing contained in it would trammel the trial court from taking a different view if otherwise satisfied at a later stage. Parties are entitled to use other evidence including materials elicited W.P.(C) NO.4678 OF 2009 :: 3 :: through examination of the Commissioner as a witness for satisfying of the court that findings in the report are faulty. 5. For the aforesaid reasons, I am not inclined to interfere with the order passed by the court below. The petitioner would be free to establish at the time of trial that the Commissioner's report requires remittal. With the above observations, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/