Commission report prepared, before the petitioner being brought in the party array, cannot legally bind them: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 12TH DAY OF FEBRUARY 2021 23RD MAGHA 1942 OP(C).No.1037 OF 2020 AGAINST THE ORDER DATED 16.03.2020 IN IA 2 2020 IN OS 12 2014 OF MUNSIFF COURT ATTINGAL AGED 36 YEARS W O.NASEER SAINAM VEEDU PUTHUKKARI SARKARA CHIRAYINKEEZHU THIRUVANANTHAPURAM DIST. BY ADV. SRI.M.R.RAJESH S O.GOPINATHAN AKKARAVILAKOM VEEDU PUTHUKKARI SARKARA CHIRAYINKEEZHU THIRUVANANTHAPURAM DIST. PIN 695304 D O.SUBHASH AKKARAVILAKOM VEEDU PUTHUKKARI SARKARA CHIRAYINKEEZHU THIRUVANANTHAPURAM DIST. PIN 695304 R1 2 BY ADV. SRI.B.MOHANLAL THIS OP HAVING BEEN FINALLY HEARD ON 12.02.2021 THE COURT ON THE SAME DAY DELIVERED THE O.P.(C)No.1037 2020 2 Dated this the 12th day of February 2021 JUDGMENT The fourth defendant in O.S.No.12 2014 is aggrieved by Ext.P8 order dated 16.03.2020 by which the learned Munsiff Attingal dismissed her application seeking appointment of Commissioner to survey and measure out the suit and counter claim properties in accordance with title deeds and The plaintiffs opposed the application contending that there is already a commission report and plan in which the matters in dispute have already been ascertained and recorded and hence a re issue of commission was not in accordance with law. Accepting the objection raised by the plaintiffs I.A.No.2 2020 filed by the petitioner was dismissed I heard the learned counsel for the petitioner as well as the respondents Learned counsel for the petitioner O.P.(C)No.1037 2020 3 submitted that despite the commission report and plan dated 20.06.2019 showing that the properties of both parties were identified and surveyed the same are not binding on the petitioner in as much as the report and plan were prepared at a time when she was not made a party to the suit. It is a fact that the petitioner was impleaded as supplemental defendant subsequent to the submission of commission report and plan. Under Order I Rule 10(5) CPC where any person is added as defendant the proceedings shall be deemed to have begun against the supplemental party only from the date of service of summons on him. That means commission report and plan prepared before the petitioner being brought in the party array cannot legally bind her at all This being the legal position the finding of the court below that the petitioner cannot apply for issue of commission for ascertaining matters therein cannot sustain under law. The impugned O.P.(C)No.1037 2020 4 order is therefore liable to be interfered with In the result this original petition succeeds and the impugned order is set aside. I.A.No.2 2020 in O.S.No.12 2014 is allowed. It is directed that the same Advocate Commissioner shall survey the properties and submit report and plan. This being a suit of the year 2014 the court below is directed to dispose of the suit within a period of six months from the date of receipt of certified copy of this judgment. It will be open to parties to take their objections if any to the report and plan newly submitted on facts and law and the court below will decide the objections so raised in accordance with law All pending interlocutory applications are T.V.ANILKUMAR Sd JUDGE O.P.(C)No.1037 2020 PETITIONER S EXHIBITS 5 A TRUE COPY OF THE PLAINT IN O.S.NO.12 2014 OF THE MUNSIFF COURT ATTINGAL A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT TO EXT.P1 PLAINT A TRUE COPY OF THE COMMISSION REPORT AND PLAN DATED 20.6.2019 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER TO EXT.P1 A TRUE COPY OF THE COUNTER CLAIM FILED BY THE PETITIONER TO EXT.P1 PLAINT A TRUE COPY OF THE COMMISSION APPLICATION A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS TO EXT. P6 A TRUE COPY OF THE ORDER DATED 16.3.2020 IN EXT.P6 PETITION BY THE MUNSIFF S COURT RESPONDENTS EXHIBITS THE TRUE COPY OF THE JUDGMENT DATED 30 01 2019 IN O.P(C) NO.116 2019 OF THIS HON BLE COURT THE TRUE COPY OF THE FIR IN CRIME NO. 1726 2016 OF CHIRAYINKIL POLICE STATION IN 

Summary: Where any person is added as defendant under Order I Rule 10(5) CPC,, the proceedings shall be deemed to have begun against the supplemental party only from the date of service of summons on him. The commission report and plan prepared, before the petitioner, being brought in the party array, cannot legally bind her at all. This assertion was made by the Kerala High Court presided by J. T.V.ANILKUMAR in the case of SHARJA vs. SASIDHARAN &amp; anr. [OP(C).No.1037 OF 2020]. The fourth defendant in O.S.No.12/2014 was aggrieved by order dated 16.03.2020, by which the learned Munsiff, Attingal, dismissed her application seeking appointment of Commissioner to survey and measure out the suit and counter claim properties in accordance with title deeds and revenue records. The plaintiffs opposed the application contending that there is already a commission report and plan in which the matters in dispute have already been ascertained and recorded, and hence a re-issue of commission was not in accordance with law. Accepting the objection raised by the plaintiffs, I.A.No.2/2020 filed by the petitioner was dismissed.