The role of the Advocate Commissioner is to assist the court, and inaccuracies in their report must be resolved during trial without remitting the report.

JUDGMENT

Aggrieved by Ext.P7 order passed by the Court of the Munsiff, Muvattupuzha in I.A.No.1022/2019 in O.S.No.316/2017, the plaintiff has filed the original petition. The respondents in the original petition are the defendants in the suit.

2. The concise facts leading to Ext.P7 order, in a nut shell, are: the petitioner has filed the suit against the respondents, inter-alia, for declaration and other ancillary reliefs. An Advocate Commissioner and a Surveyor were appointed, who have filed Ext.P3 report and plan. The petitioner has found serious mistakes in Ext.P3. Accordingly, he filed Ext.P4 objection to Ext.P3 report and I.A.No.1022/2019 (Ext.P5) to remit the commission report. The application was opposed by the respondents through Ext.P6 counter affidavit. The court below, by the impugned Ext.P7 order, has dismissed Ext.P5. Ext.P7 is patently wrong and unsustainable in law. Hence, the original petition.

3. Heard; Sri.Alias M. Cherian, the learned counsel appearing for the petitioner.

4. The question is whether there is any illegality in Ext.P7 order.

5. The specific contention of the petitioner in Ext.P5 application is that the Surveyor has not ascertained the extent of plot Nos.5A and 5B and the Advocate Commissioner has reported to have identified 6 acres and 96 cents which includes plots 1, 2, 5A and 5B. The Surveyor has wrongly shown the property obtained by the petitioner as per the sale deed. Therefore, it is necessary to remit the commission report.

6. The respondents have filed counter affidavit to Ext.P5 application contending that the Advocate Commissioner and the Surveyor have correctly identified the property.

7. The court below, after considering Exts.P5 and P6, concluded that, if at all there is any calculation mistake in the commission report and plan, the same can be clarified while examining the Advocate Commissioner and Surveyor. At the most, it can only be treated as clerical mistake. However, it is further observed that, if there is any discrepancy in the commission report and plan, the same can be put to the Advocate Commissioner and Surveyor during their examination. Hence, there is no necessity to remit the report and plan.

8. I do not find any error in the course adopted by the court below. It is to be remembered that an Advocate Commissioner is an officer of the court and not an agent of the party. The role of an Advocate Commissioner is clearly provided under Part III and Order 26 of the Code of Civil Procedure . The petitioner cannot build his case on an Advocate Commissioner's report. Nonetheless, in view of the observations made in Ext.P7 order, the Advocate Commissioner and Surveyor have to be examined first, at the time of the trial, before the parties. The petitioner would be at liberty to cross examine the Advocate Commissioner and Surveyor and discredit Ext.P3 report and plan as pointed out by him in Ext.P5 application. If the court below, after considering the testimonies of the above witnesses, finds that there is any material error or discrepancy in Ext.P3 report and plan, then the court below may, at its discretion, decide whether or not to remit the commission report or not. With the above observations the original petition is dismissed.

Sd/-

C.S.DIAS, JUDGE

rkc/04.11.22

APPENDIX OF OP(C) 2159/2022 PETITIONER ANNEXURES Exhibit P1 TRUE COPY OF THE PLAINT O.S NO. 316 OF

2017 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S NO. 316 OF 2017 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA Exhibit P3 TRUE COPY OF THE COMMISSION REPORT DATED

20/02/2019 AND PLAN FILED IN I.A NO. 2990 OF 2017 IN O.S NO. 316 OF 2017 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA Exhibit P4 TRUE COPY OF THE OBJECTION TO THE COMMISSION REPORT DATED 07/03/2019 FILED IN I.A NO. 2990 OF 2017 IN O.S NO. 316 OF 2017 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA Exhibit P5 TRUE COPY OF THE PETITION I.A NO. 1022 OF

2019 IN I.A NO. 2990 OF 2017 IN O.S NO. 316 OF 201