IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4584 of 2009(U)
1. GANGAPRAKASHAN UNNITHAN,
... Petitioner
Vs
1. JAYAPRAKASH UNNITHAN,
... Respondent
2. GEETHA, KOOTTUNKAL VEEDU,
3. GOPALAKRISHNA PILLAI,
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :13/02/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NO. 4584 OF 2009 U
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Dated this the 13th February, 2009
JUDGMENT
The petitioner is the first plaintiff in O.S.No.6 of 2003, on the file of
the Court of the Munsiff of Kayamkulam. The suit was filed for fixation of
boundary and for injunction.
2. A Commissioner was appointed to inspect the properties and to
submit a plan and report. The Commissioner submitted a report, sketch
and a plan. The first plaintiff filed an application for setting aside the
Commissioner’s report and plan (I.A.No.1221 of 2005, wrongly shown as
I.A.No.1221 of 2002 in the order impugned). The court below dismissed
the application by the order dated 18.11.2008, which is under challenge in
this Writ Petition. The court below considered the objections raised by the
petitioner to the Commissioner’s report, took note of the evidence
adduced by the Commissioner, perused the report, sketch and plan
submitted by the Commissioner and came to the conclusion that there are
no grounds for setting aside the report, sketch and plan. In the course of
arriving at such a finding, the court below made certain observations that
the plaintiffs have tactfully suppressed the actual extent of the plaint ‘C’
Schedule property belonging to the first defendant and misdescribed it as
the property having an extent of 8.09 Ares only. The court below also
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found that the Commissioner has correctly located the plots in the plan
and that no error or procedural irregularity was committed by the
Advocate Commissioner in locating the properties. It was also observed
by the court below that what provoked the first plaintiff to file an
application to set aside the Commissioner’s report and plan is that the
Commissioner honestly reported that the property of the first defendant is
having 11.57 Ares as against 8.09 Ares shown in the plaint.
3. Learned counsel for the petitioner submitted that the court
below has not considered properly the materials and evidence in the case
and was under the erroneous impression that the petitioner suppressed
material facts. It is submitted that on that erroneous finding, the court
below has held that there are no grounds to set aside the Commissioner’s
report and plan.
4. The dismissal of an application to set aside the Commissioner’s
report and plan does not preclude the petitioner to establish, at the time of
trial, that the plan and report are not liable to be accepted and that further
probe is necessary. In Kanaran Nair v. Madhavan Nair (1996 (1) KLT
162), a Division Bench of this Court held that in spite of the dismissal of
the application for setting aside the Commissioner’s report, the court can
modify or alter it at the final stage of the suit, when the court gets better
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opportunity to decide whether the report of the Commissioner can be
acted upon. There is nothing which inhibits the court from doing so at a
later stage. The order dismissing an application to set aside the
Commissioner’s report or to remit the same 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. The Division
Bench also held that parties are entitled to use other evidence to satisfy
the court that the findings in the report are faulty.
5. I do not think that the order passed by the court below is illegal,
improper, irregular or without jurisdiction. There is no ground to invoke
the jurisdiction under Article 227 of the Constitution of India. However, it
is made clear that the observations made in the order were made only for
the purpose of considering whether the report and plan submitted by the
Commissioner should be set aside. Those observations will not influence
the court at the time of final disposal of the suit.
Subject to the right of the petitioner as provided in 1996 (1) KLT
162, the Writ Petition is dismissed.
(K.T.SANKARAN)
Judge
ahz/