The necessity for cross-examination of the commissioner before accepting their report is crucial to ensuring fair proceedings.

JUDGMENT

This petition is filed by the petitioners for challenging order passed by the Principal Munsiff Court-I, Kozhikode in IA No.10 of 2022 filed by the petitioner in OS No.244/2021.

2. Heard the learned counsel for the petitioner and respondent.

3. The case of the petitioner is that an application filed by the respondent under Order 26 Rule 10 of the Code of Civil Procedure , an Advocate Commissioner has been appointed and a report has been submitted by the advocate commissioner and the petitioner filed an application for remitting back the commissioner report and for directing the commissioner for fresh consideration which came to be dismissed by impugned order.

4. The learned counsel for applicant contended that the commissioner not considered the work memo filed by the petitioner and without the order of the court the commissioner verified the property of the petitioner/defendant therefore there is a draw back and very defect in the commissioner report and the sketch produced by the commissioner. Therefore, the petitioner prayed for remitting back the commissioner report which came to be dismissed on the ground that the work memo is not filed before the court and without permission, the same was filed before the commissioner is not correct. In fact, the commissioner report, the work memo has been filed before the court and which was taken by the commissioner and trial court also committed error in holding that there is no necessity for remitting back and the same can be considered by the court which is not correct hence prayed for setting aside the order.

5. Per contra, the learned counsel for the respondent seriously objected the petition contending that the trial court by considering the remarks made by the commissioner the report as well as sketch was rightly passed the order, the work memo was not filed before the court which was directly given to the commissioner.

6. It is further contended that the advocate commissioner considered work memo of the petitioner. Therefore, there is no need to interfere in the order. It is also contended that the commissioner is not yet examined before the court in order to bring out the any defect. Such being the case the order cannot be set aside, hence prayed for dismissal of the petition.

7. On perusal of the same it is not in dispute on the application filed by the respondent/plaintiff a commissioner has been appointed and a report has been submitted by the commissioner as per Ext.P8 report and Ext.P9 sketch filed the commissioner report dated 03.08.2022. Subsequently, the petitioner being the defendant filed an application for remitting commission report back and report as per IA under Order 26 Rule 10 of the CPC, which came to be dismissed.

8. The trial court while passing the impugned order relied by the judgment of this court in Kunjumani Vs .

Jayalakshmi :

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023:KER:76719 that the Court held that the work memo cannot be directly file to the petitioner until obtained prior permission from the court. However, this was seriously disputed by the learned counsel it is stated that the work memo has been filed before the court and the same was taken by the commissioner from the Court. However, in view of the earlier direction issued by this court for disposing the suit within 6 months from January 2025 this court cannot call for the records to verify the validity of the version of the petitioner for having filed the work memo before the court. But the work memo said to be filed before the co