Commission reports not set aside pre-trial; factual disputes resolved only after evidence at trial.

JUDGMENT

The petitioner has challenged Ext.P9 order in I.A.No.1 of 2020 in O.S.No.97 of 2017 on the file of the Munsiff Court, Ettumanoor. The petitioner is the defendant. The prayer in the application was to either set aside the commission report or to remit it back and get a fresh report on the basis of a total survey. The court considered the contentions and in paragraph No.8 observed as follows:

“8. The petitioner/defendant, has raised this application to remit the commission report for the reasons that they were not provided road frontage. This was not a question raised in the commission application to be inspected and reported. The documents of the properties were present to aid the court to determine the exact facts involved in the case. The commission report states matter that were asked to be inspected. There is no specific reason raised in the application to remit the commission report. The commission report can only be accepted after the trial in the case. The decision can only be reached after trial in the case. If at the time of trial, the commission report is found against the facts, then it can be set aside. I do not find that there is any valid reason to set aside the commission report or that it suffers from deficiencies that should be rectified. The allegations in the application made by the petitioner are factual in nature and can only be determined after the suit is tried. If at the time of the trial it is understood that the commission report cannot be accepted appropriate order to remit the same can be passed. Hence, this application is dismissed at this stage.

2. A reading of the order would show that the court did not consider it necessary to remit the commission report or to set aside the report at that stage. The court has specifically stated that the commission report can be accepted only after the trial in the case. It is further observed that if, on examining the allegations in the application made by the petitioner, they are found to be factually correct at the stage of trial, then the question of remitting back the commission report or setting aside can be considered.

3. In view of the said observations it cannot be said that the petitioner has a grievance. The request in the application has not been rejected in toto. The court has only relegated the decision to a later stage after trial. In the above circumstances, I do not find any reason to interfere with the order passed. The observation of the court in Paragraph No.8 is reaffirmed, and, if after trial it is found that the allegations are factually correct, then the court shall consider the question of remitting back the commission report or setting aside the commission report whichever is required.

The original petition is closed with the above observations.