IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 WP(C).No. 32652 of 2009(O) -------------------------- OS.611/2008 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): --------------- P. GANGADHARAN, S/O. LATE PAZHANIMALA, AGED 61 YEARS, SREERAGAM HOUSE, PERUMAL KOVIL VILLAGE, KOLLENGODE, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. SAROJINI, W/O. JANARDHANAN, GOURI NIVAS, PERUMAL KOVIL VILLAGE, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. JANARDHANAN, S/O. K.S. MENON, RESIDING AT GOURI NIVAS, PERUMAL KOVIL VILLAGE, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. 3. THE SPECIAL GRADE SECRETARY, KOLLENGODE GRAMA PANCHAYATH, KOLLENGODE, PALAKKAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.32652 OF 2009 -------------------------------- Dated this the 16th day of November 2009 ---------------------------------------------------------- JUDGMENT Petitioner is the first defendant in O.S No.611 of 2008 on the file of Munsiff Court, Chittur. Suit is for injunction both prohibitory and mandatory, and the respondents 1 and 2 are the plaintiffs, and third respondent a local authority is the second defendant. Petitioner/first defendant has filed a written statement resisting the suit claim. On the application moved by the first and second respondents/plaintiffs, an advocate commissioner conducted a local inspection and filed three reports, Ext.P1 to Ext.P3, of which Ext.P1 and Ext.P2 are interim reports and Ext.P3 the final report. Petitioner/first defendant filed objections to the reports seeking for its remission mainly contending that the assistance of an expert to determine the matters involved is essential for a fair and proper disposal of the suit. Ext.P4 and Ext.P5 are the copies of the objections. The learned W.P.(C).No.32652 OF 2009 Page numbers Munsiff after hearing both sides negatived the objections raised by the petitioner for remission of the report vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 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 respondents is necessary and hence it is dispensed with. The learned counsel for the petitioner inviting my attention to Ext.P1 and Ext.P2 reports of the commissioner submitted, a specific request was made by the advocate commissioner for the assistance of another expert in the place of the person deputed, a building inspector, as the deputed officer in view of his inconveniences failed to assist the execution of the commission. According to the counsel, despite such a request made by the advocate commissioner, no other expert was provided and the final report was filed without the assistance of any expert. In such circumstances, W.P.(C).No.32652 OF 2009 Page numbers according to the counsel, the objections raised under Ext.P4 and Ext.P5 to the commission reports ought to have been examined with reference to the non providing of the expert despite the request made by the advocate commissioner. The learned Munsiff has also made some observations in Ext.P6 order while declining the request of the petitioner for remitting the commission report, which, according to the counsel, would cause prejudice as such expressions indicate of some conclusions formed on the disputed questions without providing opportunity to the parties to lead evidence on the issues arising for adjudication. Having regard to the submissions made by the counsel with reference to Ext.P6 order impugned in the writ petition and also taking note of the other exhibits produced as well, I find it is not proper and appropriate for this court to sit in judgment on the merit of the objections raised to the commission report in exercise of its visitorial jurisdiction. After all commission report is only a piece of evidence and its value has to be judged with reference to other pieces of evidences let in the case. However, the apprehension expressed by the learned Munsiff that in Ext.P6 order some observations had been W.P.(C).No.32652 OF 2009 Page numbers made by the court on the disputed questions involved has necessary to be allayed and, therefore, I direct the court below to resolve the disputed questions involved in the case untrammelled by any of the observations in Ext.P6 order. There will be a further direction to extend an opportunity to the petitioner/first defendant to substantiate his objections to the reports, if steps are taken for examining the commissioner, at the trial and, then, to decide the merit of the commission report. Ext.P6 order will not stand in the way of the court in determining the merit of the commission report in the event of the commissioner being examined in trial. In case the court finds that the report suffers from any infirmity, it shall pass appropriate orders in accordance with law. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv