IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 20978 of 2009(O) --------------------------------------- OS.NO.460/1996 OF MUNSIFF COURT,WADAKKANCHERRY. .................... PETITIONER: ------------------- ENU, AGED 76,S/O.KUNNATHUPEEDIKAYIL MOIDU, MULLOORKARA VILLAGE,VAZHAKODU DESOM, TALAPPILLY TALUK. BY ADVS. MR.G.SREEKUMAR (CHELUR), SMT.PREETHY KARUNAKARAN, MR.K.RAVI (PARIYARATH). RESPONDENTS: ------------------------ 1. MUHAMMEDKUTTY,S/O.PUTHENPEEDIKAYIL KUNJAMMU,KILLIMANGALAM VILLAGE, VILANGANPARA DESOM,TALAPPILLY TALUK. 2. HAJU,S/O.PUTHENPEEDIKAYIL KUNJAMMU, KILLIMANGALAM VILLAGE, VILANGANPARA DESOM, TALAPPILLY TALUK. 3. UMMER,S/O.MUNAMBANGU VEETTIL ALAVI, PANGARAPPILLY VILLAGE,TALAPPILLY TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.20978 OF 2009 -------------------------- Dated this the 27th day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P6 and may be pleased to set aside the same finding that it is illegal and unsustainable. ii) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant. 2. Petitioner is the plaintiff in O.S 460/1996 on the file of the Munsiff Court, Wadakkanchery. Suit is one for recovery of damages W.P.(C).No.20978 OF 2009 Page numbers and for injunction. Respondents are the defendants in the suit. Petition has been filed to challenge the order passed by the learned Munsiff declining the request of the petitioner to remit the report and plan prepared by the advocate commissioner appointed in the case. Ext.P6 is the copy of that order so passed by the Munsiff. Impeaching the propriety and correctness of Ext.P6 order petitioner has filed this petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P6 order, I find no notice to the respondents is necessary, and hence it is dispensed with. The learned counsel for the petitioner submitted that the commission report filed in the case suffers from serious infirmities and if it is not remitted taking note of the W.P.(C).No.20978 OF 2009 Page numbers serious objections raised by the petitioner ultimately it will cause irreparable injury, further, miscarriage of justice. From the submissions made it appears the report which is sought to be remitted back is the second one after setting aside and remitting the earlier report filed by the commissioner. This court has held more than once that no challenge to an order declining the remission of a commission report is entertainable by way of revision or proceeding under Article 227 of the Constitution of India. After all a commission report is a piece of evidence collected in a case to enable the court to adjudicate the issues in the suit or proceeding. If at all any party has any grievance to the report, but remission is not allowed by the court, his remedy is to challenge the correctness and propriety of that report in the appeal if an adverse decision is rendered against him in the suit or proceeding. After going through Ext.P6 order, I find no impropriety in the order passed by W.P.(C).No.20978 OF 2009 Page numbers the learned Munsiff declining the request for remission of the report as desired by the petitioner. However, I make it clear that the learned Munsiff shall consider the merit of the report after providing an opportunity to the petitioner to substantiate his objections by examining the commissioner in the trial of the suit. The value of the report shall be adjudged untramelled by any of the observations made in the impugned orders, but, on the basis of the evidence let in the case. If the report suffers from any serious infirmity needless to point out the court below shall pass appropriate orders as may be found necessary. Subject to the observations made above, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv