2025:KER:25715 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 OP(C) NO. 2733 OF 2019 AGAINST THE ORDER DATED 01.10.2019 IN OS NO.282 OF 2016 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA PETITIONERS: 1 AMRITHA AGED 38 YEARS, W/O. PRAVEEN P. KAIMAL, KALARIKKAL VEETTIL, THEKKANARIYAD, SOUTH AARIYAD VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. 2 MONCY JOSEPH AGED 45 YEARS, S/O. JOSEPH, PUTHENPURACKAL, THEKKANAYADU,SOUTH ARYADU, AMBALAPUZHA TALUK, ALAPPUZHA. BY ADVS. R.MOHANA BABU SRI.M.AJITH (KARICODE) RESPONDENT: JOHNY VARGHESE AGED 53 YEARS, S/O. VARGHESE, MUKKATH HOUSE, PAZHAVEEDU P. O., CHUNGAM WARD, ALAPPUZHA - 688001. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.K.R.MONISHA SMT.SHRUTHI SARA JACOB SHRI.SALWA T MUHAMMED SRI.K.K RAJAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 2733 OF 2019 2025:KER:25715 2 K.BABU, J. ------------------------------------------------------- O.P (C) No. 2733 of 2019 -------------------------------------------------------- Dated this the 26th day of March, 2025 J UDGMENT The challenge in this Original Petition is to Ext.P8 order dated 01.10.2019 in I.A.Nos.2492 and 2918 of 2019 in O.S.No.282/2016 on the file of the Additional Munsiff’s Court, Alapuzha. 2. The petitioners are the plaintiffs in the suit. The respondent is the defendant. The plaintiffs instituted the Original Suit for permanent injunction against the defendant. The defendant resisted the suit and set up a counter-claim seeking fixation of boundaries seperating his property and the property of the plaintiffs and the pathway in dispute. The Court below issued a Commission. The Commissioner submitted Ext.C1 series mahazar, report and plan. The plaintiffs filed objection to Ext.C1 series as per Ext.P7. They filed I.A.No.2492/2019 to set aside the commission report, mahazar and plan. The defendant filed I.A.No.2918/19 to remit the OP(C) NO. 2733 OF 2019 2025:KER:25715 3 commission report. The trial Court considered both the applications. The Court refused to set aside the commission report and remitted it on the ground that certain matters sought to be elucidated were not considered by the Commissioner. 3. The plaintiffs challenge this order in this Original Petition. The trial Court noted that the Commissioner has not ascertained point Nos.2 and 4 in Ext.P5 commission application. Point Nos. 2 and 4 in Ext.P5 read thus:- “2. After fixing boundaries as aforesaid ascertain and fix the pathway provided in the title deeds of the defendants which opens from the north eastern corners towards east up to the public road on east. 4. While fixing the western boundary line of the Counter claim schedule property, ascertain whether any portion of the 2nd plaintiff’s property shares the boundary with the defendants’ property and also acertain that portion of the compound wall which was demolished in order to put an access through the Counter claim schedule property, with the help of urged Commission report.” 4. I have heard the learned counsel for the petitioners/plaintiffs and the learned counsel for the respondent/defendant. 5. The learned counsel for the plaintiffs OP(C) NO. 2733 OF 2019 2025:KER:25715 4 submitted that in Ext.P8 order the Court below has arrived at certain conclusions which may cause prejudice to the party during trial. 6. The learned counsel for the defendant submitted that the trial Court rightly arrived at the conclusions as mentioned above. 7. On a perusal of Ext.C1 series report, mahazer and plan it can be seen that the Commissioner has not considered point Nos.2 and 4 in Ext.P5. That is the reason that weighed the trial Court to remit the commission report. 8. As per Sub-section (3) of Rule 10 of Order XXVI CPC, the Court is empowered to remit the commission report for further inquiry. Ext.C1 series report has become part of the evidence as per Order XXVI Rule 10 (2) CPC. I am of the view that there is no need to interfere with the order directing the Commissioner to conduct a further inquiry in the matter in view of the fact that it had not taken into account point Nos. 2 and 4. 9. The credibility of the conclusions arrived at by the Commissioner in the different reports can be well appreciated at the time of trial. Therefore, this Court is of the OP(C) NO. 2733 OF 2019 2025:KER:25715 5 view that the order impugned requires no interference exercising the jurisdiction under Article 227 of the Constitution of India. In view of the apprehension raised by the learned counsel for the plaintiffs highlighting prejudice I make it clear that the Court below shall consider the report untrammelled by any of the observations made in Ext.P8 order. The trial Court shall take earnest efforts to expedite the trial in the matter. The Original Petition is disposed of as above. Sd/- K.BABU, NM JUDGE OP(C) NO. 2733 OF 2019 2025:KER:25715 6 APPENDIX OF OP(C) 2733/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY SUB COLLECTOR, ALAPPUZHA ON 30.1.2018. EXHIBIT P2 TRUE COPY OF THE AMENDED PLAINT IN O.S.169/2016. EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT SUBMITTED IN O.S.282/2016 ON THE APPLICATION OF PETITIONERS. EXHIBIT P4 TRUE COPY OF THE COUNTER CLAIM WRITTEN STATEMENT. EXHIBIT P5 TRUE COPY OF PLAN AND REPORT PREPARED BY COMMISSIONER AND SURVEYOR ON 16.5.2019 MARKED AS C1, C1(A). C1(B) EXHIBIT P6 TRUE COPY OF THE PETITION FOR REMITTING BACK THE PLAN AND REPORT FILED BY RESPONDENT I.A.2918/2019. EXHIBIT P7 TRUE COPY OF THE PETITION FOR SETTING ASIDE THE PLAN AND REPORT I.A.2492/2019. EXHIBIT P8 TRUE COPY OF ORDER PASSED BY ADDL. MUNSIFF COURT, ALAPPUZHA DISMISSING I.A.2492/2019 AND ALLOWING I.A.2918/2019. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 4.2.2019. EXHIBIT P10 TRUE COPY OF PETITION FILED BY PETITIONERS FOR DIRECTING TO PRODUCE PATTAYAM OF DEFENDANT PROPERTY.