IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 OP(C).No. 1158 of 2011(O) ------------------------- AGAINST THE ORDER DATED 04/01/2011 IN IA 306/2009 IN OS.88/2006 of MUNSIFF MAGISTRATE, SULTHAN BATHERI .................... PETITIONERS/DEFENDANTS/PETITIONERS ------------------------------------------------------------- 1. SEKHARAN, S/O.KARAPPAN, AGED 68 YEARS, PANATT HOUSE, CHEERAL AMSOM, SULTHAN BATHERY TALUK. 2. RADHAKRISHNAN, S/O.RAMANKUTTY, AGED 48 YEARS, AMARAMBATH HOUSE, CHEERAL AMSOM, S.BATHERY TALUK. 3. BALAN, S/O.RAMANKUTTY, AGED 44 YEARS, AMARAMBATH HOUSE, CHEERAL AMSOM, SULTHAN BATHERY TALUK. BY ADV. SRI.RAFFEEKH KOTTAKKAL RESPONDENT/PLAINTIFF/DEFENDANT -------------------------------------------------------- NARAYANAN CHETTY, S/O.CHAPUKUTTY, CHIRAKKOLLY, CHEERAL AMSOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN-673595. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.BHAVADASAN, J. ---------------------------- O.P(c).No. 1158 of 2011 --------------------------------- Dated this the 22nd day of March, 2011 JUDGMENT In this Original Petition filed under Article 227 of the Constitution of India, the petitioners assail Ext.P6 order whereby the application for remitting the commission report was dismissed. 2. The relief sought for are as follows: a. Issue a order or direction to set aside Exhibit P5 order. b. Issue a order or direction to the Court Below to return the Exhibit P3 commission report for proper enquiry and report, strictly in accordance with the work memo submitted by the defendants. c. Such other reliefs that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 3. The petitioners are the defendants in O.S.No.88/2006 before the Munsiff's Court, Sulthan Bathery. The suit was one for injunction, which related to a pathway. The copy of the plaint is marked as Ext.P1. Initially, a commissioner was deputed. In that commission application, the petitioner submitted a work memo. The true copy of the work memo is produced as Ext.P2. The commissioner filed a report which is marked as Ext.P3. O.P(c).No. 1158 of 2011 2 4. Much thereafter, the petitioners filed IA No.306/2009 for remitting the commission report and to direct the commissioner to make further enquiry as per the work memo submitted by the defendants in the suit. The main grievance of the petitioner is that the commissioner had not taken note of the disputed pathway, subject matter of the suit. 5. The respondents objected to the petition. The court below after consideration of the material, came to the conclusion that there is no substance in the application and dismissed the petition. 6. The main grievance of the petitioners is that the commissioner had omitted to note certain essential aspects, which have bearing on the issue. However, the court below in considering the petition found that the commissioner has marked the alleged pathway and the northern side of Item No.1. It is also pointed out that the lower court that there is no reason for the complaint since the commissioner had noted the matters O.P(c).No. 1158 of 2011 3 contained in the work memo submitted by the petitioner. It is found that the defendants were also present at the time of inspection. 7. For those reasons, the court below felt that there was no substance in the complaint made by the petitioner. There are no grounds are made out to interfere with the order of the court below dismissing the petition. The petitioners are at liberty to show the commissioner's report cannot accepted at the time of the trial of the suit. With this observation, this Original Petition is dismissed. P.BHAVADASAN, JUDGE. ln