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2025 Supreme(Online)(KER) 12589
HIGH COURT OF KERALA
BASANT BALAJI, J
RUKHIYA – Appellant
Versus
MARY JOHN – Respondent
OP(C) 2762/2024
M.DEVESH M.ANUROOP MURSHID ALI M. JYOTHIS MARY, P.MOHAMED SABAH JASNEED JAMAL LIBIN STANLEY(K/250/2015), SAIPOOJA(K/001130/2016)
A court may appoint a new commissioner for further inquiry without setting aside an existing commission report if dissatisfied, as per established legal principles.
Headnote:(A) Code of Civil Procedure, 1908 - Order 26 Rule 10(3) - Suit for fixation of boundary and injunction - Petitioners challenged the dismissal of their application for a fresh commission to inspect the property, arguing that the existing commission report was inadequate - The court noted that no objections were filed against the earlier report and emphasized the need for reconsideration of the application based on prior case law. (Paras 4, 5)
(B) Commission Reports - The court held that it is permissible to appoint a new commissioner without setting aside the previous report if the court is dissatisfied with it, allowing for further inquiry. (Paras 4, 5)
Facts of the case:
The petitioners, plaintiffs in a boundary fixation suit, sought to challenge the dismissal of their application for a new commission to inspect the property, citing inadequacies in the existing commission report.
Findings of Court:
The court found that the dismissal of the application for a new commission lacked proper consideration of the objections raised and set aside the dismissal order, directing the trial court to reconsider the application.
Issues: The main issues included whether the existing commission report was sufficient for adjudication and the appropriateness of appointing a new commissioner.
Ratio Decidendi: The court ruled that the absence of objections to the previous commission report does not preclude the appointment of a new commissioner if the court finds the existing report inadequate, reaffirming the principle that courts can remit reports for further inquiry.
Result: The original petition is disposed of, and the dismissal order is set aside.
JUDGMENT
(Dated this the 1st day of April, 2025)
The petitioners are the plaintiffs in OS No.66/2024 on the file of the Munsiff Court, Nilambur, and the respondents are the defendants in the suit. The suit was one filed for fixation of boundary, mandatory injunction, and also for prohibitory injunction. According to the plaintiffs, the plaint A schedule property belongs to the father of the plaintiffs and the 3rd defendant in the suit in which the residential property of the plaintiff is situated. The respondents filed written statement denying all the allegations against them. A commission application was filed in which a commissioner was appointed, and he visited the property, and a report was filed as Ext.P4. The plaintiffs filed an application to remit the same as IA No.2/2023 and the same was not pressed. Thereafter, a fresh application was filed as Ext.P5 to appoint a new commissioner to inspect the plaint schedule property. The said application was dismissed by Ext.P7. The petitioners challenge Ext.P7 order in this original petition.
2. A counter affidavit is filed by the 1st respondent, in which it is contended that the petitioners have been filing commission applications one after the other. There are two commission reports; one is dated 08.12.2016 and another dated 29.05.2017 and also Ext.P4 report. The petitioners had filed I.A No.3 of 2022 in the above suit, praying to remit back Ext.P4 report and for a fresh report and plan. However, the petitioners themselves later not pressed I.A No.3/2022. Later, the petitioners filed Ext.P5, IA No.2/2024. The petitioners have not sought to remit back Ext.P4 report and have not filed any objection to it. Ext.P4 report and sketch contain all the particulars that are necessary for the adjudication of the suit. The matters sought to be ascertained in the present application are already reported by the commissioner in Ext.P4. Therefore, no fresh commission be appointed, it is only to delay the suit. Hence, it is prayed that the original petition be dismissed.
3. It is not in dispute that no objection is filed to Ext.P4 commission report, and instead, an application is filed to remit back the same, which was not pressed, and a fresh commission application was filed as Ext.P5.
4. The counsel for the petitioners relied on the judgment of this Court in Laly Joseph v. Francis ( 2023 (2) KLT 516 ), wherein this Court held that even though there is no specific mention about setting aside the report under Order 26 Rule 10 (3) of CPC, as it refers to conducting a further enquiry, there is no embargo for setting aside a commission report if the court is totally dissatisfied with the commission report. It is also open for the court to remit the commission report for further inquiry and to appoint a fresh commission without setting aside the earlier commission report. The court can appreciate both reports very well and decide accordingly during the trial.
5. Ext.P5 application was dismissed only on the ground that the petitioners never took any steps to set aside the earlier commission report, and therefore, the present application cannot be allowed. There is no discussion as to whether the commission report which is already there, is devoid of any discrepancies. It is seen in Ext.P5 that the petitioners have stated so many objections against the commission report. As mentioned earlier, it is a fact that there is no objection filed to Ext.P4, but the objections were raised in Ext.P5 application. Thus, the grounds stated for dismissing Ext.P5, cannot stand in light of the decision of this Court in Laly Joseph (supra).
Therefore, I am of the considered opinion that Ext.P5 requires reconsideration. In the result, Ext.P7 is set aside, and the Trial Court is directed to reconsider Ext.P5 in the light of Laly Joseph (supra), and give the opportunity to the respondents to contend that a report is already before the court which is proper for the adjudication of the suit. The orders shall be passed within a
