IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 9496 of 2009(O) ---------------------------------- AGAINST THE ORDER DATED 30/06/2008 IN IA.738/2006 IN OS.170/2005 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONERS : ----------------- 1. M.K.MADHAVI AMMA, D/O.NARAYANI AMMA KANHILERI DESOM, KANHILERI PO, PRESENTLY RESIDING AT 'AGEELA' KEEZHALLUR AMSOM, ELAMBARA DESOM P.O.ELAMPARA. 2. SURENDRAN, S/O. VADAKKEKARAMMAL, SIVAPURAM AMSOM, KANBILERI DESOM, P.O.KANHILERI 3. SUNIL KUMAR, SIVAPURAM AMSOM KANBILERI DESOM, P.O.KANHILERI. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENTS : ------------------- 1. SHYAMALA, D/O. M.K.LAKSHMIKUTTY AMMA, LAKSHMI NIVAS SIVAPURAM AMSOM, KANHILERI DESOM,. P.O.KANHILERI. 2. PREMACHANDRAN, LAKSHMI NIVAS SIVAPURAM AMSOM, KANHILERI DESOM,. P.O.KANHILERI. 3. PRADEEPKUMAR, LAKSHMI NIVAS SIVAPURAM AMSOM, KANHILERI DESOM,. P.O.KANHILERI. 4. ANITHA, LAKSHMI NIVAS SIVAPURAM AMSOM, KANHILERI DESOM,. P.O.KANHILERI. WP(C).No. 9496 of 2009(O) 5. DILEEP KUMAR, SREE GOVIND, EDATHIL ROAD, THALASSERY. 6. SINDHU, LAKSHMI NIVAS, SIVAPURAM AMSOM, KANHILERI DESOM, P.O.KANHILERI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------- W.P.(C) No.9496 OF 2009 --------------------------------------- Dated this the 27th day of March, 2009 JUDGMENT Defendants 1, 3 and 4 in O.S.No.170/2005 on the file of the Court of the Munsiff of Koothuparamba challenge in this Writ Petition the order dated 30.06.2008 in I.A.No.738/2006 by which the court below rejected the prayer made by them for setting aside the Commissioner's report and plan. 2. The Commissioner inspected the property on 15.06.2005, 19.06.2005 and 27.06.2005. The case of the petitioners is that the Commissioner is a close associate of one of the parties who is a lawyer and that they have the same political ideology. It is also alleged that the surveyor who assisted the Commissioner is also a close friend of the plaintiffs. The petitioners alleged that they were not given proper notice by the Commissioner before the inspection. The contentions raised by the petitioners were denied by the respondents. The court below considered the objections raised by the petitioners to the Commissioner's report in great detail and passed an order running to 17 pages. W.P.(C) No.9496 of 2009 2 3. The petitioners did not even spare the court. This is clear from para 22 of the order impugned which reads as follows : 22. Every one has a right to follow his or her own political ideology. Being member of a political group or practising in the same court is not bar to be appointed as a commissioner. If that contention is allowed the court will face a difficult situation in finding out suitable persons for appointing as Commissioner. An Advocate is an officer of the court. It is expected that an Advocate while discharge his duty as a commissioner will do justice to parties and to the court also. Except the verbal vibrations there is no cogent and convincing evidence or materials before this court to come to a conclusion that the commissioner has shown partiality or biased. So the said contention is to be discarded. One sentence in the petition that “the appointment of the very commissioner in the above back ground cannot be believed to be accidential”. Seems to be a point raised against the integrity of the court. He is aiming to substantiate that there was some foul play in the matter of appointment of the commissioner. In my opinion the said word W.P.(C) No.9496 of 2009 3 is quite unbecoming from a party to the suit. 4. The petitioners even obstructed the Commissioner in executing the work. The commissioner is a lady Advocate. She had to seek the assistance of the police. The obstruction was so caused, after the petitioners entered appearance in the case. Therefore the court below rightly came to the conclusion that the petitioners cannot plead ignorance about the proceedings before court. They raised all sorts of contentions without any bonafides. The contentions were rightly rejected by the court. The petitioners are not entitled to any discretionary relief, in view of their conduct which is clear from the records. The Commissioner was not examined in the case. The objections raised against the Commissioner's report are not established. 5. The order in an application to set aside the Commissioner's report is only interlocutory in nature and nothing contained in it would trammel the trial court from taking a different view if otherwise satisfied at a subsequent stage. Parties are entitled to use other evidence including materials elicited through examination of the commissioner as W.P.(C) No.9496 of 2009 4 a witness for satisfying the court that the findings in the report are faulty. [See Kanaran Nair Vs. Madhavan Nair (1996 (1) KLT 162)]. The writ petition is devoid of merits. It is accordingly dismissed. However the petitioners would be entitled to establish that the Commissioner's report requires fresh consideration, as held in 1996 (1) KLT 162. K.T.SANKARAN JUDGE pac