The court upheld the trial court's decision to remit a commissioner's report for further clarifications, asserting that appointing a new commissioner would unnecessarily delay case resolution.

JUDGMENT :

K. NATARAJAN, J.

This original petition is filed by the petitioner/defendant, challenging Ext.P7 order dated 09.04.2024 by the trial court for remitting back the commissioner report, and for filing separate plan in accordance with the measurements as per Ext.A1 partition deed.

2. The learned counsel for the petitioner/defendant contented that the commissioner has not properly measured the property, therefore, the commissioner’s report should be set aside and a fresh commissioner required to be appointed for the purpose of taking measurements and producing fresh sketch, as per the fresh work memo produced by the parties. Whereas, the respondent also filed an application for remitting back the commissioner report, which was already filed by the commissioner as per Ext.P4(a), for want of some more clarification in the commissioner report. By common order, the trial court dismissed the application filed by the defendant, and allowed the application filed by the plaintiff and remitted the commissioner report back for further clarifications as per the order dated 09.04.2024, which is under challenge.

3. The case of the petitioner is that the commissioner did not properly verify the document and filed the report, therefore the report is almost supporting the case of the plaintiff. Therefore, the commissioner’s report shall be set aside, and a new commissioner shall be appointed.

4. Learned senior counsel appearing for the respondents supported the order and contented that the case was already remitted twice by the High Court as well as the District Court, therefore, appointing the new commissioner will lead to further delay in disposing of the suit. Therefore, if there is any grievance, the petitioner can file a work memo before the court for the purpose of considering the work memo by the commissioner and file fresh report that is sufficient to dispose of the matter, and there is no need to interfering with the order. Hence, prayed for dismissing the same.

5. Having heard the arguments and perused the records. On perusal of the same, it is admitted that the suit was filed by the plaintiff in the year 1995, which was initially decreed, and in the appeal, the same was set aside and remitted. Once again the suit was dismissed by the trial court and in the appeal the district judge allowed the appeal and a decree was passed, which was challenged before this court by filing a second appeal by the defendant, wherein this court, while considering the second appeal in SA 243/2002, set aside the judgment and remitted the matter once again for a afresh consideration for appointing the commissioner and identifying the 'C' schedule property and pathway and dispose of the matter within nine months, vide judgment 08/07/2022.

6. After remitting back, the commissioner was appointed by the trial court. Accordingly, the commissioner submitted the report to the court on 08/03/2023 as Ext.P4 and the sketch was produced as Ext.P4(a). Once again the plaintiff filed an objection for remitting back with the request the court and the commissioner to verify the actual measurement of the pathway and also a road leading from south to north on the extent part of the A and B schedule property, which was not considered by the commissioner. Therefore, the matter required to remitting back for fresh consideration and accordingly, the trial court accepted the contention of the plaintiff and allowed the application whereas the petitioner objected to the commissioner’s report and set aside the entire commissioner report and appointed a fresh commissioner by the trial court.

7. On a perusal of the order passed by trial court, which reveals a