Court's discretion to remit commission reports in civil proceedings when dissatisfied with their findings.

J U D G M E N T

This original petition is filed against the order dated 19.08.2022 in I.A.No.2628 of 2019 in O.S.No.286 of 2016 passed by the Munsiff Court, Manjeri rejecting the application of the petitioners filed under order XXVI Rule 10 of the Code of Civil Procedure (the CPC) to set aside Ext.P7 Commission report and Ext.P8 plan.

2. The petitioners are the plaintiffs in the suit for mandatory injunction. According to the petitioners, on the southern boundary of item No.1 of plaint A schedule is an 'edavazhi' which is used by them and their predecessors-in-interest for more than 40 years. Plaint B schedule way runs north-south and joins the said edavazhi. The petitioners contend that plaint B schedule is the only means of their ingress and egress to plaint A schedule property from a public way. The petitioners have right of easement of necessity over plaint B schedule way. Mandatory injunction is sought for to direct the respondents/defendants to remove the barbed wire fencing erected in plaint B schedule way. A permanent prohibitory injunction is also sought to restrain the defendants from obstructing plaint B schedule way or user of plaint B schedule way by the plaintiffs. Ext.P1 is the plaint.

3. The respondents/defendants filed Exts.P2 and P3, separate written statements contending that plaint B schedule property never existed through the properties of the defendants and the said way was never used by the plaintiffs. It is further contended that the plaintiffs have got an alternate way to the properties. No barbed wire fence, as alleged in the plaint, is erected by the defendants.

4. Along with Ext.P1 plaint, the petitioners had filed an application for issuance of an emergent commission and to report the nature of plaint schedule property and with respect to the alleged obstructions made by the defendants in the plaint B schedule way. The application was allowed by the trial court and the Commissioner filed Ext.P4 report and Ext.P5 sketch. The petitioners state that the Commissioner marked plaint B schedule way as 'ABCDA' in Ext.P5 sketch. In Ext.P4 report, the Commissioner reported that to bring forth a plan with measurement of the plaint schedule properties as required in the commission application, assistance of Taluk Surveyor is necessary.

5. Plaintiffs 1 to 3 filed I.A No.3060 of 2017 (Ext.P6) to remit Ext.P4 report and Ext.P5 sketch submitted by the Commissioner to ascertain the matters requested for in the said application, with the assistance of a Surveyor. In Ext.P6, it was pointed out that the relevant measurements of the plaint B schedule way, including the length of the land marked as ‘BEFD’, the nature of its boundaries, the details of any obstructions, and the age of the barbed fencing, are to be ascertained by the Commissioner.

6. Ext.P6 application was allowed by the trial court by Ext.P12 order. Apart from directing payment of bata to the Commissioner and the Surveyor, Ext.P12 order merely states that the application is allowed and the respondents are entitled to file a work memo.

7. Pursuant to Ext.P12, the Commissioner inspected the properties and filed Ext.P7 report and Ex.P8 plan. According to the petitioners, in Ext.P8 plan, plaint B schedule way, which is the disputed property is not identified and marked and the Commissioner has not ascertained and reported other requisite particulars sought for in Ext.P6. Accordingly, the petitioners filed I.A.No.2628 of 2019 (Ext.P9) to set aside Ext.P7 report and Ext.P8 plan stating that the report does not mention the existence and lie of the way, nor does it refer to the barbed fence erected by the respondents, and the report and the plan are not useful for resolving the controversy in the suit. The respondents filed Ext.P10 co