Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Ker) 31170

IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R. Ravi, J
Satheeshan – Appellant
Versus
Vijayappan – Respondent
OP(C) NO. 1890 OF 2022|O.S.NO.1074/2015|I.A.NO.2/2022|O.S.NO.8/2016

Advocates:
For the Appellants/Petitioners: R. Reji, M.V. Thamban, Thara Thamban, B. Bipin, Arun Bose, Suneesh Kumar R.

A court must reconsider an application for the appointment of a commission if a previous judicial finding arguably contradicts the factual assertions contained in an existing commission report regarding property pathways.

Headnote:The present petition arises from an order passed by the trial court refusing to appoint a fresh Commissioner in a suit, based on the non-filing of objections to an initial report. The defendants contested the findings of the initial report, specifically regarding the existence of a pathway, and produced a prior judgment where a court had explicitly found that no such pathway existed through the property in question. The core issue before the court was whether the refusal to appoint a new Commissioner was justified when the findings of an earlier report were fundamentally challenged by a previous judicial determination. The court held that where a prior judgment has reached a categoric finding on factual aspects of the property, ignoring such evidence while deciding on the requirement for a new commission report constitutes a material irregularity. The Original Petition is allowed, the impugned order of the trial court is set aside, and the matter is remanded for fresh consideration alongside the application to set aside the commission report.

Table of Content
1. the court emphasizes that material judicial findings (like previous judgments) must be weighed when determining the necessity of commissioning new reports. (Para 1 , 2)

JUDGMENT

The original petition has been filed challenging Ext.P6 order dated 29.08.2022 in I.A.No.2/2022 in O.S.No.1074/2015 on the file of Additional Munsiff Court, Alappuzha. Ext.P6 is an order whereby a request to appoint a Commissioner filed by the petitioners who are defendants in the suit was dismissed on the ground that they had not filed objection to the earlier report. The grievance of the petitioners is that in the report that had been filed, it has been noted by the Advocate Commissioner that there is a way. According to the petitioners there is no such way. The petitioners have filed an application seeking to set aside the said commission report, which is pending consideration. Petitioners have also produced Ext.P7 judgment in O.S.No.8/2016 filed by the 1^st petitioner in which there is a categoric finding that there is no pathway through the plaint schedule property, which is being used by the defendants.

2. Even though notice was issued and served on the respondent there is no appearance for the respondent. It is submitted that Ext.P7 judgment has become final.

In the above circumstances, this original petition is allowed.

Ext.P6 order is set aside. The court below is directed to reconsider I.A.No.2/2022 in O.S.No.1074/2025 along with I.A.No.3/2022 seeking to set aside the earlier commission report and pass fresh orders in accordance with law.

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2026 Supreme(Online)(Ker) 31170

IN THE HIGH COURT OF KERALA AT ERNAKULAMT.R. Ravi, JSatheeshan – AppellantVersusVijayappan – RespondentOP(C) NO. 1890 OF 2022|O.S.NO.1074/2015|I.A.NO.2/2022|O.S.NO.8/2016

A court must reconsider an application for the appointment of a commission if a previous judicial finding arguably contradicts the factual assertions contained in an existing commission report regarding property pathways.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R. Ravi, J
Satheeshan – Appellant
Versus
Vijayappan – Respondent
OP(C) NO. 1890 OF 2022|O.S.NO.1074/2015|I.A.NO.2/2022|O.S.NO.8/2016