IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 22221 of 2009(O) ---------------------------------------- OS.589/2004 of MUNSIFF COURT, PALAKKAD .................... PETITIONER(S): ------------------------- 1. P.P.YATHEENDRAN, S/O. P. NARAYANAN NAIR AGED 77 YEARS, "NARAYANEEYAM", AMBIKAPURAM P.O., PALAKKAD NO.II VILLAGE, PALAKKAD TALUK PALAKKAD DIST. 2. P.UNNIKRISHNAN, S/O. LATE KUTTYKRISHNAN NAIR, AGED 55 YEARS, "SUDHARSHANAM" AMBIKAPURAM POST, PALAKKAD NO.II VILLAGE, PALAKKAD TALUK PALAKKAD DIST. BY ADV. MR.JACOB SEBASTIAN RESPONDENT(S): ------------------------- 1. KUNJAN FATHER'S NAME NOT KNOWN, AGE ABOUT 60 YEARS, RETIRED PROFESSOR, "APARNA" AMBIKAPURAM POST, PALAKKAD NO.II VILLAGE PALAKKAD TALUK PALAKKAD DIST. 2. THE PALAKKD MUNICIPALITY REP. BY ITS SECRETARY, PALAKKAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22221 OF 2009 -------------------------- Dated this the 7th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Set aside the order dated 05.06.2009 in I.A No. 944/2006 in O.S No.589/2004 of the Munsiff Court, Palakkad (Ext.P4). ii) Issue a writ in the nature of prohibition or any other appropriate writ order or direction commanding the Court of the Munsiff, Palakkad to reconsider Ext.P3 and set aside Ext.P2, commission report. W.P.(C).No.22221 OF 2009 Page numbers iii) Pass such other writ, order or direction, which are deemed fit and proper on the facts and circumstances of the case and in the interest of justice. 2. Petitioners are the plaintiffs in O.S No. 589/2004 on the file of the Munsiff Court, Palakkad. Suit is for perpetual prohibitory injunction and the respondents are the defendants. An advocate commissioner appointed by the court conducted a local inspection,prepared and filed a report with a plan with the assistance of a surveyor. Petitioners filed objections to that commission report. The learned Munsiff examining the merit of the report with reference to the objections raised after hearing the counsel on both sides declined the request of the plaintiff to set aside and remit the report for fresh consideration. Ext.P4 is the copy of the order passed by the W.P.(C).No.22221 OF 2009 Page numbers learned Munsiff. Propriety and correctness of that order is challenged in the writ 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 petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P4 order, I find no notice to the respondents is necessary and it is dispensed with. The learned counsel for the petitioners submitted even on a perusal of the report and plan, a copy of which is produced, it can be shown to be erroneous. Whatever be the objection to the merit of the report it has to be pointed out that this court has expressed the view more than once that a commission report is only a piece of evidence in a suit and it is not proper or correct for this court even in exercise of the W.P.(C).No.22221 OF 2009 Page numbers revisional jurisdiction under Section 115 of the Code of Civil Procedure to appreciate its value during the pendency of the suit. In view of the amendment to Section 115 of Code of Civil Procedure needless to say any challenge with reference to the merit of a commission report pending suit is not amendable to revisional jurisdiction. Examining the merit of a commission report in exercise of the visitorial jurisdiction vested with this court under Article 227 of the constitution is more rigorous, and I am of the view that it is not open to this court to express any view on the report which has to be treated only as a piece of evidence among other materials to be let in a suit or proceeding for resolving the issues arising for adjudication. So much so, the challenge against Ext.P4 order canvassed in the writ petition cannot be sustained. However, I make it clear that if the case has not been included in the special list for W.P.(C).No.22221 OF 2009 Page numbers trial, if a request is made by the petitioners to examine the advocate commissioner to sustain the objections raised by him to the report, the court below shall consider it on its merit and pass appropriate orders. Ext.P4 order will not stand in the way of the court in passing any such order strictly in accordance with law to advance the ends of justice. Subject to the above observations, the writ petition is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv