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2024 Supreme(Online)(KER) 3834
HIGH COURT OF KERALA
Kauser Edappagath, J
T.T.K. DEVASWOM, – Appellant
Versus
P.E. KRISHNAN NAMBOODIRI – Respondent
OP(C) 1134/2024
MATHEW KURIAKOSE G.GIREESH T.G.SUNIL (PERUMBAVOOR) J.KRISHNAKUMAR (ADOOR) C.N.PRAKASH MONI GEORGE SHAJI P.K.
The court has the discretion to appoint a commissioner under Sections 75 and 78 of the Code of Civil Procedure, and the report of the commissioner can be relied upon by the court to determine the identity of the plaint schedule property.
Headnote:
Civil Procedure - Order Dismissing Application to Remit Commission Report - Sections 75, 78 of the Code of Civil Procedure
Fact of the Case:
The petitioner is the plaintiff in a suit for recovery of possession on the basis of title. The trial court appointed an Advocate Commissioner to identify the plaint schedule property. The Commissioner filed a report identifying two plots, 'A' and 'B', with the plaint schedule property consisting of both. The plaintiff filed an application to remit the Commission Report to correct the plot earmarked, which was dismissed by the trial court. The plaintiff has challenged this dismissal order in the present original petition.
Finding of the Court:
The High Court dismissed the original petition, holding that the plaintiff can examine the Commissioner at the time of trial to prove that the plaint schedule property consists of both plots 'A' and 'B', and the Commission Report need not be remitted for this purpose.
Issues: Whether the trial court was justified in dismissing the plaintiff's application to remit the Commission Report?
Ratio Decidendi: The Commissioner has identified the plaint schedule property based on the title deed and survey records, and the plaintiff can examine the Commissioner at the trial to establish that the plaint schedule property consists of both plots 'A' and 'B'. Therefore, there is no need to remit the Commission Report for this purpose.
Final Decision: The original petition is dismissed with liberty to the plaintiff to examine the Commissioner at the time of trial.
Ext. P6 order dismissing the application to remit the commission report is under challenge in this original petition.
2. The petitioner is the plaintiff and the respondent is the defendant in OS No.20/2015 pending on the file of Sub Court, Payyannur (for short, “the Trial Court”). The suit is one for recovery of possession on the strength of title and for consequential reliefs. The Trial Court deputed an Advocate Commissioner to identify the plaint schedule property with the help of a surveyor. Accordingly, the Commissioner filed Ext.P3 report and plan. Thereafter, the plaintiff filed Ext.P4 application to remit back the Commission Report to correct the plot earmarked in the plan. The Court below after hearing both sides, dismissed Ext.P4 application as per Ext.P6 order. It is challenging the said order, the plaintiff has approached this Court.
3. I have heard the learned counsel for the petitioner.
4. The Commissioner has measured the plaint schedule property on the basis of title deed and also survey records. The Commissioner has identified two plots in Ext.P3 plan, plot ‘A’ and plot ‘B’. In the Commission Report, the Commissioner has shown the plot ‘A’ as the plaint schedule property. But according to the petitioner, the plaint schedule property consists of plot ‘A’ and ‘B’. The side measurements of plot ‘A’ and ‘B’ has been given. The plaintiff can very well examine the Commissioner and prove that the plaint schedule property as measured by him consists of plaint ‘A’ and ‘B’ schedule properties. For the said purpose, Commission Report need not be remitted.
Hence, this original petition is dismissed with liberty to the petitioner to examine the Commissioner at the time of trial.
