IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 4584 of 2009(U) OS.6/2003 of MUNSIFF COURT, KAYAMKULAM PETITIONER: IST PLAINTIFF: --------------- GANGAPRAKASHAN UNNITHAN, S/O. KOCHUPAPPU PILLAI, KOOTTUNKAL VEEDU, PUTHUPPALLY, THEKKUM MURI, PUTHUPPALLY VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENTS: DEFENDANTS: --------------- 1. JAYAPRAKASH UNNITHAN, KOOTTUNKAL VEEDU, PUTHUPPALLY THEKKUMURI, PUTHUPPALLY VILLAGE. 2. GEETHA, KOOTTUNKAL VEEDU, PUTHUPPALLY THEKKUMUI, PUTHUPPALLY VILLAGE, 3. GOPALAKRISHNA PILLAI, KOOTTUNKAL VEEDU, PUTHUPPALLY THEKKUMURI, PUTHUPPALLY VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4584 OF 2009 U ------------------------------------------------------ Dated this the 13th February, 2009 JUDGMENT The petitioner is the first plaintiff in O.S.No.6 of 2003, on the file of the Court of the Munsiff of Kayamkulam. The suit was filed for fixation of boundary and for injunction. 2. A Commissioner was appointed to inspect the properties and to submit a plan and report. The Commissioner submitted a report, sketch and a plan. The first plaintiff filed an application for setting aside the Commissioner's report and plan (I.A.No.1221 of 2005, wrongly shown as I.A.No.1221 of 2002 in the order impugned). The court below dismissed the application by the order dated 18.11.2008, which is under challenge in this Writ Petition. The court below considered the objections raised by the petitioner to the Commissioner's report, took note of the evidence adduced by the Commissioner, perused the report, sketch and plan submitted by the Commissioner and came to the conclusion that there are no grounds for setting aside the report, sketch and plan. In the course of arriving at such a finding, the court below made certain observations that the plaintiffs have tactfully suppressed the actual extent of the plaint 'C' Schedule property belonging to the first defendant and misdescribed it as the property having an extent of 8.09 Ares only. The court below also W.P.(C) NO.4584OF 2009 :: 2 :: found that the Commissioner has correctly located the plots in the plan and that no error or procedural irregularity was committed by the Advocate Commissioner in locating the properties. It was also observed by the court below that what provoked the first plaintiff to file an application to set aside the Commissioner's report and plan is that the Commissioner honestly reported that the property of the first defendant is having 11.57 Ares as against 8.09 Ares shown in the plaint. 3. Learned counsel for the petitioner submitted that the court below has not considered properly the materials and evidence in the case and was under the erroneous impression that the petitioner suppressed material facts. It is submitted that on that erroneous finding, the court below has held that there are no grounds to set aside the Commissioner's report and plan. 4. The dismissal of an application to set aside the Commissioner's report and plan does not preclude the petitioner to establish, at the time of trial, that the plan and report are not liable to be accepted and that further probe is necessary. In Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162), a Division Bench of this Court held that in spite of the dismissal of the application for setting aside the Commissioner's report, the court can modify or alter it at the final stage of the suit, when the court gets better W.P.(C) NO.4584OF 2009 :: 3 :: opportunity to decide whether the report of the Commissioner can be acted upon. There is nothing which inhibits the court from doing so at a later stage. The order dismissing an application to set aside the Commissioner's report or to remit the same 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 subsequent stage. The Division Bench also held that parties are entitled to use other evidence to satisfy the court that the findings in the report are faulty. 5. I do not think that the order passed by the court below is illegal, improper, irregular or without jurisdiction. There is no ground to invoke the jurisdiction under Article 227 of the Constitution of India. However, it is made clear that the observations made in the order were made only for the purpose of considering whether the report and plan submitted by the Commissioner should be set aside. Those observations will not influence the court at the time of final disposal of the suit. Subject to the right of the petitioner as provided in 1996 (1) KLT 162, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/