The court affirmed its authority to remit a commissioner's report for additional details necessary for just adjudication, highlighting the importance of comprehensive evidence.

JUDGMENT

Ext.P6 order in OS No.135 of 2020 on the file of the Munsiff court, Vatakara is challenged in this original petition.

2. The petitioner is the defendant in OS No.135 of 2020 on the file of the Munsiff Court, Vatakara and the respondent herein is the plaintiff in the suit filed for mandatory injunction to restore the lateral support to the plaint B schedule property. The suit has been filed alleging that the defendant removed the soil from the portion of his property adjoining plaint B schedule property and thereby reduced the height of the property by three metres, by which the lateral support of the property of the petitioner has been lost.

3. The petitioner who is the defendant filed written statement contending that a very strong boundary wall was constructed of red stone and the same is in existence separating the property of the plaintiff and the defendant, and that the boundary wall was in existence at the time when the defendant purchased the property. The demand of the plaintiff is to demolish the said wall and construct a new one in the manner and height as suggested by him. It is also contended that there is no weakness to the existing boundary wall and the plaint B schedule property has never got any lateral support from the property of the defendant. Originally a commission application was filed as IA No.1 of 2021 and the same was allowed and the commissioner has filed Ext.P4 report and the existence of a boundary wall separating the property of the plaintiff and defendant has been clearly stated therein and the commissioner further stated that only an expert can say that whether the property of the plaintiff will lost its lateral support due to the removal of the soil from the property of the defendant. No objection has been filed to the commission report by the plaintiff. The matter was listed for trial and evidence was started. After the evidence of the plaintiff and examination of the commissioner and after the evidence was closed the matter was posted for hearing to 11.7.2024. On 11.7.2024 the case was adjourned for hearing to 18.7.2024 and on 18.7.2024 the learned Munsiff suo motu remitted the commission report and directed to file a fresh report with specific observation as to whether there is in the estimation of the advocate commissioner any withdrawal of lateral support. It is challenging the same, Ext.P6 order, the original petition has been filed.

4. Petitioner contend that no objection has been filed by the plaintiff, the respondent herein to the commissioner's report earlier filed and the commissioner was not even cross examined by the plaintiff to establish his objection. The suo motu remittal of the commission report on the belated stage has caused serious prejudice to the petitioner. Had an application being filed by the plaintiff, petitioner could have got an opportunity to resist the same by filing objection. On the said grounds petitioner submits that Ext.P6 order is absolutely without any basis and liable to be interfered with.

5. A perusal of Ext.P6 order would reveal that though a commission report was filed on 1.11.2022 it is not clear from the commission report and plan as to whether earth has been removed from the defendant's property in such a way as to cause withdrawal of lateral support and it is impossible for the court to decide the case without getting the details of the extend of withdrawal of the earth by the defendant in his property so as to cause withdrawal of lateral support. It is in the said circumstances, the court has remitted the commissioner's report and plan suo motu for submitting the plan and report with these specific observations as to whether there is in the estimation of the commissioner any withdrawal of lateral support.

6. It is no doubt that the court adjudicating the suit has authority to appoint the commissioner which could be done either upon an application of any of the parties involved or by the court suo motu. When the court during evidence finds that s