IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 WP(C).No. 6266 of 2010(O) ------------------------- IA NO.288/2009 IN OS.165/2008 of MUNSIFF COURT, KALPETTA .................... PETITIONER(S): --------------- 1. DEVASI, S/O.ANTONY, AGED 78 YEARS, MALPAN HOUSE, THAILPUZHA. 2. MARY THOMAS, D/O.SAMUEL, AGED 33 YEARS, W/O.THOMAS, MALPPAN HOUSE, THAILPUZHA. 3. SALEEM.K.P., S/O.VEERAN, AGED 37 YEARS, KANHIRAPARAMBIL HOUSE, THALIPUZHA, ALL RESIDING AT KUNNATHIDAVAKA AMSOM, VYTHIRI TALUK, WYANAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. TESSY PAUL, D/O.PYLO, AGED ABOUT 44 YEARS, MAIPAN HOUSE, THALIPUZHA. 2. MARY PAUL D/O.PYLO, AGED ABOUT 50 YEARS, MAIPAN HOUSE, THALIPUZHA. 3. SHIBU PAUL, D/O.PYLO, AGED ABOUT 38 YEARS, MAIPAN HOUSE, THALIPUZHA. 4. ANTONY.M.P., S/O.PYLO, AGED ABOUT 48 YEARS, MAIPAN HOUSE, THALIPUZHA. ALL RESIDING AT KUNNATHIDAVAKA AMSOM, VYTHIRI TALUK, WAYANAD DISTRICT. 5. THADEVOOS, MAIPAN HOUSE, THALIPUZHA, VYTHIRI TALUK. ALL RESIDING AT KUNNATHIDAVAKA AMSOM, VYTHIRI TALUK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.6266 of 2010 -------------------------------------- Dated this the 28th day of May, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P4, order, declining to remit the report of Advocate Commissioner at the stage it was prayed for. Petitioners/plaintiffs filed the suit for a decree for prohibitory injunction against respondents/defendants trespassing into plaint B schedule road obstructing their right of way and altering the nature of the said way. Advocate Commissioner inspected the property and submitted report and sketch. Commissioner has reported about existence of the disputed road as described in plaint B schedule. Petitioner filed I.A.No.288 of 2009 to remit the report stating that Commissioner has not ascertained measurement of the road. Learned Munsiff as per Ext.P4, order without foreclosing right of petitioner to seek remission of the report at the time of trial if it is so warranted, dismissed the application. That order is under challenge in this Writ Petition. Learned counsel contends that I.A.No.288 of 2009 was filed about an year before Ext.P4, order and that remission of the report is necessary to ascertain measurement of the disputed way. 2. I have gone through Ext.P3, application for remission and Ext.P4, order passed thereon. In Ext.P3, in paragraph No.4 petitioner says that the Advocate Commissioner has verified and found that road described in plaint B schedule do exist at spot. But the grievance of petitioner is that Advocate WP(C) No.6266/2010 2 Commissioner has not conducted measurement of various items shown as A schedule to the plaint and plaint B schedule. Learned Munsiff has observed after going through the report and Ext.P3, application that no ground is made out to remit the report “at this stage”. Learned Munsiff has also observed that “if after the full trial, this court found that the report of the commissioner is not sufficient to decide the issues framed in the suit, the court is not powerless to remit back the report at that stage so as to get an additional report necessary to decide the issues”. Certainly, right of petitioner to seek remission of the report if at the time of trial report is found to be wanting in details necessary to decide the controversy is not foreclosed. It is open to petitioner to examine the Advocate Commissioner at the time of trial and bring out the deficiency which petitioner alleges and then request the court to remit the report if found necessary as learned Munsiff has observed. In the above circumstances there is no reason to interfere with the order under challenge. Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks