IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31168 of 2005(I)
1. KHADEEJA, AGED 45 YEARS,
... Petitioner
Vs
1. OOTTIKKAL ALI, AGED 43 YEARS,
... Respondent
2. OOTTIKKAL ABDUL KAREEM, AGED 48 YEARS,
3. AYAMKUDI KUNJARAMMU, AGED 68 YEARS,
4. BASHEER, AGED 38 YEARS,
5. FAISAL, AGED 43,
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.SAJU.S.A
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/07/2005
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
W.P.(C) NO. 31168 OF 2005
===========================
Dated this the 28th day of July, 2008
JUDGMENT
Petitioner is the plaintiff and respondents the
defendants in O.S.220/1997 on the file of Munsiff
Court, Manjeri. Suit was originally one for
permanent prohibitory injunction. Subsequently
plaint was amended for mandatory injunction also. A
Commission was appointed. Commissioner submitted a
report. Petitioner then filed I.A.831/2005 to
remit the report. Under Ext.P2 order petition was
dismissed granting opportunity to the petitioner to
adduce evidence in support of the objections.
Subsequently suit was dismissed. Thereafter it was
restored to file. Petitioner then filed
I.A.1742/2005, an application to remit the report
and plan to the Commissioner. Under Ext.P6 order,
learned Munsiff dismissed the application holding
that the same prayer was rejected as per Ext.P2
order earlier. This petition is filed under
W.P.(C)31168/2005 2
Article 227 of the Constitution of India
challenging Exts.P2 and P6 orders.
2. Learned counsel appearing for petitioner
was heard.
3. The argument of the learned counsel is that
Commissioner submitted Ext.P3 report only in 2005
and therefore petitioner cannot be found fault for
protracting the trial and I.A.831/2005 was
dismissed under Ext.P2 for the reason that suit is
included in the special list and as the suit was
subsequently dismissed for default and restored,
I.A.1742/2005 should not have been dismissed on the
ground that petition was earlier dismissed. It
was argued that learned Munsiff should have
remitted the report to the Commissioner to file a
correct report and Exts.P2 and P6 orders are to be
quashed.
4. On hearing the learned counsel, I do not
find any illegality or irregularity warranting
interference.
5. Under Ext.P2 order, petition to remit the
report to the Commissioner was rejected granting
opportunity to the petitioner to adduce evidence in
W.P.(C)31168/2005 3
support of the objections. Though one of the
reasons shown in Ext.P2 order is that suit was
included in the special list, it does not mean that
when the suit was dismissed for default and later
restored, Ext.P2 order passed earlier to be
ignored and report is to be remitted to the
Commissioner.
6. On the facts and materials, I do not find
any reason to interfere with Exts.P2 and P6 orders.
Petitioner is entitled to adduce evidence in
support of the objections including cross
examining the Commissioner. If by adducing such
evidence, petitioner can satisfy the court and
court finds that there is defect in the report or
the report cannot be relied on, court is competent
either to set aside the report or remit the report
to the Commissioner. Petitioner is also entitled
to challenge Ext.P2 and P6 orders along with the
judgment, if it goes against her in the regular
appeal.
Writ Petition is disposed of as above.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
W.P.(C)31168/2005 4
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006
