IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 21^ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946 OP(C) NO. 1719 OF 2023 ORDER DATED 08.02.2023 in IA 129/18 IN OS NO.125 OF 2016 OF MUNSIFF MAGISTRATE COURT,MANNARKAD PETITIONERS/PETITIONERS/DEFENDANTS:

1 JOSEPH P.V., AGED 75 YEARS, S/O VARKEY, PARATHINAL VEETIL, P.O. CHITOOR, AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT, PIN - 678581

2 ELIKUTTY, AGED 70 YEARS W/O JOSEPH P.V., PARATHINAL VEETIL, P.O. CHITOOR, AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT, PIN -

678581 BY ADVS.P.JAYARAM P.B.AJOY, K.R.PAUL RESPONDENT/RESPONDENT/PLAINTIFF:

GRACY JOY, AGED 57 YEARS, W/O K.P.JOY, KULANGARA VEETIL, P.O. CHITOOR, AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT, PIN - 678581 BY ADVS.Abdul Lathief T.M NITHIN A.R.(K/142/2023)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

21.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

Ext.P10 order dismissing an application to remit back the commissioner's report is under challenge in this original petition.

2. The petitioners are the defendants and the respondent is the plaintiff. The suit is one for declaration and consequential injunction. A commission was taken out. The commissioner filed the report along with the survey plan. The petitioners filed an application to remit back the commissioner's report. They also filed applications seeking permission to examine the surveyor, advocate commissioner and to receive the document produced on their behalf in evidence as Exts. P7, P8 and P9 respectively. However, the trial court dismissed the remitting application on the ground that no steps have been taken by the petitioners to examine those witnesses. It is challenging the said order, this original petition has been filed.

3. I have heard both sides.

4. A perusal of Ext.P10 order would show that remitting application was not dismissed on merits. On the other hand, it is dismissed for the reason that no steps were taken to examine the commissioner and the surveyor. The learned counsel for the petitioners submits that the petitioners are prepared to take steps, if any, to examine witnesses to prove that the commissioner's report requires remittance. Hence, Ext.P10 is set aside. The trial court is directed to give one more opportunity to the petitioners to take steps to examine the witnesses to prove their case that the commissioner's report warrants remittance. An opportunity, if any, shall be given to the respondent as well. Thereafter, the trial court is directed to pass fresh order in the remitting application. It is made clear that the trial court need to order examination of only those witnesses who are necessary for adjudicating the remitting application.

The original petition is disposed of as above.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE kp APPENDIX OF OP(C) 1719/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.

125/2016 ON THE FILES OF COURT OF THE MUNSIFF-MAGISTRATE, MANNARKAD Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANT IN O.S.NO. 125/2016 ON THE FILES OF COURT OF THE MUNSIFF-MAGISTRATE, MANNARKAD Exhibit P3 TRUE COPY OF THE COMMISSIONER'S REPORT DATED 05/07/2017 ALONG WITH SURVEY PLAN Exhibit P4 TRUE COPY OF THE OBJECTIONS DATED

14/02/2018 SUBMITTED BY THE PETITIONERS/DEFENDANTS AGAINST THE COMMISSIONER'S REPORT AND PLAN Exhibit P5 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO. 129/2018 IN O.S. NO. 125/2016 ON THE FILES OF COURT OF THE MUNSIFF-MAGISTRATE, MANNARKAD Exhibit P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT/PLAINTIFF IN THE APPLICATION TO REMIT THE COMMISSIONER'S REPORT AND PLAN Exhibit P7 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A. 526/2019 IN O.S.NO. 125/2016 ON THE FILES OF THE COURT OF THE MUNSIFF MAGISTRATE, MANNARKAD Exhibit P8 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A. 527/2019 IN O.S.NO. 125/2016 ON THE FILES OF THE COURT OF THE MUNSIFF MAGISTRATE, MANNARKAD FILED BY THE PETITIONERS HEREIN TO