IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 234 of 2010(O) ------------------------------------ (IA.NO. 4808/2009 IN OS.NO.542/2005 OF ADDL.MUNSIFF COURT,NEDUMANGAD) .................... PETITIONER: ------------------- V.MOHANAN NAIR, MOHANAVILASOM, MANNARAKONAM, PIRAPPANCODE P.O., VENJARAMOODU (VIA), THIRUVANANTHAPURAM. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. RESPONDENTS: ------------------------ 1. BABU PILLAI, VILAYIL VEEDU, PARAPOTTAYIL, KUTHIRAKULAM P.O., MANICKKAL VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM. 2. SREELATHA, W/O.BABU PILLAI, VILAYIL VEEDU, PARAPOTTAYIL, KUTHIRAKULAM P.O., MANICKKAL VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM. 3. SARASWATHY AMMA, EDAVILAKATHU VEEDU, NELLANADU VILLAGE, MUDAKKAL MURI, NOW RESIDING AT EDAYILA VEEDU, PERUMKOOR, VEMBAYAM P.O., THIRUVANANTHAPURAM. 4. SOMAN PILLAI, EDAYILA VEEDU, NEDUMPULLI MURI, VEMBAYAM VILLAGE, THIRUVANANTHAPURAM. R1 & R2 BY ADVS. MR.V.R.GOPU, MR.J.NARAYANA PILLAI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.234/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO.380/2005. EXT.P.2: COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. 380/2005. EXT.P.3: COPY OF THE COMMISSION APPLICATION DTD. 01/07/2006. EXT.P.4: COPY OF THE COMMISSION REPORT. EXT.P.5: COPY OF THE SURVEY SKETCH PREPARED BY THE TALUK SURVEYOR. EXT.P.6: COPY OF THE SURVEY SKETCH PREPARED BY THE TALUK SURVEYOR. EXT.P.7: COPY OF THE I.A. NO. 4808/2009 IN O.S. 542/05. EXT.P.8: COPY OF THE ORDER IN I.A. 4808/2009 IN O.S. 542/2005 DTD. 09/12/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 234 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. JUDGMENT Aggrieved by the order setting aside the Commissioner's report, the plaintiff in O.S. 542 of 2005 has come up with this writ petition seeking certain reliefs. 2. When the defendants in the suit tried to trespass into the property of the plaintiff, he laid the suit. It is averred that the defendants tried to blast rocks in the property owned by the plaintiff. O.S. 380 of 2005 was instituted seeking permanent prohibitory injunction. In order to ascertain the lie and location of the plaint schedule property, a commission was taken out. Ext.P2 report and plan was filed by the Commissioner. Meanwhile, another suit was instituted as O.S.482 of 2005 before the Munsiff's Court, Nedumangad for a decree declaring title and possession WPC. 234/2010. 2 of the plaintiff over the plaint schedule property which the plaintiff claimed as per a lease deed. It is stated that the second respondent herein filed O.S. 542 of 2005 before the Munsiff's Court, Nedumangad for declaration of title and possession over the properties which had been purchased by her as per two deeds of the year 2005. All these suits are being tried jointly. In one of the suits, a petition for issuance of a commission was filed and that was allowed. The Commissioner after visiting the property and after preparing a plan with the aid of the Taluk Surveyor submitted the same before court. 3. Later it is stated that the second respondent in this proceedings filed I.A.4808 of 2009 to set aside the commission report and plan and to remit the same to the commissioner and call for a fresh report. Copy of the petition so filed is produced as Ext.P7. According to the petitioner, quite surprisingly the court below set aside the WPC. 234/2010. 3 commission report and directed a fresh inspection. The said order is produced as Ext.P8. Ext.P8 is assailed on various grounds. 4. Learned counsel appearing for the petitioner pointed out that the court below has not given any justifiable reasons for remitting the commissioner's report. In fact, according to learned counsel in one portion of the order, the court below observed that even if there are some discrepancies in the report and plan, that does not affect the merits of the case and does not cause hindrance in determining the issue involved in the suit. After having so observed, the court without any justifiable reasons, set aside Exts.C1, C1(a) and C1(b) Commission report, plan and sketch. Learned counsel for the petitioner points out that it was with considerable difficulty that the earlier sketch and plan were got prepared and the suit was ripe for trial and at that point of time the petition was filed by the second WPC. 234/2010. 4 respondent and the application for remitting the report and plan did not contain any valid reasons also. Learned counsel also pointed out that if during trial it was found that the plan, sketch and report are not helpful or not correct, the aggrieved person could then seek a fresh report. Learned counsel also pointed out that there are no justifiable reasons to set aside the commission report. 5. Learned counsel appearing for the respondents relied on the decision reported in Sarojini v. Karthiyani Amma (2010 (1) KLT SN 17) and contended that a petition under Article 227 of the Constitution of India assailing an order setting aside the commission report is not maintainable. It is also pointed out that no particular prejudice is caused to the petitioner by the court setting aside the report and calling for a fresh report. 6. According to the learned counsel, the court below felt that there were serious infirmities in the report WPC. 234/2010. 5 and therefore passed the impugned order. According to learned counsel, no grounds are made out to interfere with the order passed by the court below. 7. It is true that in the decision relied on by the learned counsel for the respondents it was observed that normally the supervisory jurisdiction of this court will not be exercised in such matters. But it also provides that in exceptional circumstances it can be so done. Normally this court will be very reluctant to exercise its visitorial jurisdiction under Article 227 of the Constitution of India in such matters. 8. Coming on the facts of this case, there seems to be some justification in the grievance of the petitioner. Even though the second respondent has filed a petition to set aside the Commission report, no particular grievance is seen voiced against the earlier report and plan. It is significant to notice that Exts.C1, C1(a) and C1(b) were filed WPC. 234/2010. 6 as early as on 1.8.2007. The application to set aside the commission report was filed by the second respondent herein on 18.9.2009, that is two years after the commission report has been filed and when the suit was ripe for trial and included in the list for trial. It is to be noticed that the court below took evidence in the case and an elaborate procedure was followed. Even thereafter a cryptic order was passed setting aside the report. In one portion of the order the court below observed that even though there are some minor discrepancies, that does not affect the issues involved in the suit. There is no justifiable reason given by the second respondent for the considerable delay in filing the petition seeking remission of the report of the commissioner and calling for a fresh report. The tactics adopted can be treated as one to protract the trial of the suit. Again at the risk of repetition, no justifiable reasons are discernible from the order of the court below. WPC. 234/2010. 7 In the result, this petition is allowed, Ext.P8 order is set aside and the matter is remanded to the trial court for fresh considerable in accordance with law and in the light of what has been stated above. The court below may consider whether Exts.C1, C1(a) and C1(b) are sufficient at the time of trial of the suit and if during trial of the suit it is found that the report, sketch and plan are not sufficient enough, the party aggrieved can be given an opportunity to seek further inspection and preparation of a proper plan. P. BHAVADASAN, JUDGE sb.