IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 1ST DAY OF APRIL 2025 / 11TH CHAITHRA, 1947 OP(C) NO. 2762 OF 2024 AGAINST THE ORDER DATED 16.11.2024 IA 2/2024 IN OS NO.66 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NILAMBUR PETITIONERS/PETITIONERS/PLAINTIFFS: 1 RUKHIYA AGED 75 YEARS D/O,KUNDAMTHODIKAKUNHUNNI@MOHAMMED,CHOKKAD (PO), CHOKKAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN - 679332 2 SAINABA AGED 73 YEARS D/O, KUNDAMTHODIKAKUNHUNNI @ MOHAMMED, CHOKKAD (PO), CHOKKAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN - 679332 3 MUSTHAFA AGED 60 YEARS S/O, KUNDAMTHODIKAKUNHUNNI @ MOHAMMED, CHOKKAD (PO), CHOKKAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRIC., PIN - 679332 4 SUBAIDA AGED 55 YEARS D/O, KUNDAMTHODIKAKUNHUNNI @ MOHAMMED, CHOKKAD (PO), CHOKKAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN - 679332 5 ABDUL NAZAR AGED 47 YEARS D/O, KUNDAMTHODIKAKUNHUNNI @ MOHAMMED, CHOKKAD (PO), CHOKKAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM OPC 2762/2024 -2- 2025:KER:27892 DISTRICT., PIN - 679332 BY ADVS. M.DEVESH M.ANUROOP MURSHID ALI M. JYOTHIS MARY RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 MARY JOHN D/O. JOHN, KANJIRAMPADAM, CHOKKAD (PO), CHOKKAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN - 679332 2 KUNDAMTHODIKA SULAIMAN CHOKKAD (PO), CHOKKAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN - 679332 3 RE-SURVEY SUPERINTENDENT NILAMBUR TALUK, TALUK OFFICE NILAMBUR, NILAMBUR P.O., MALAPPURAM DISTRICT., PIN - 679329 4 STATE OF KERALA REPRESENTED DISTRICT COLLECTOR, MALAPPURAM DISTRICT, COLLECTORATE MALAPPURAM., PIN - 676505 BY ADVS. P.MOHAMED SABAH JASNEED JAMAL LIBIN STANLEY(K/250/2015) SAIPOOJA(K/001130/2016) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 2762/2024 -3- 2025:KER:27892 JUDGMENT (Dated this the 1 st day of April, 2025) The petitioners are the plaintiffs in OS No.66/2024 on the file of the Munsiff Court, Nilambur, and the respondents are the defendants in the suit. The suit was one filed for fixation of boundary, mandatory injunction, and also for prohibitory injunction. According to the plaintiffs, the plaint A schedule property belongs to the father of the plaintiffs and the 3 rd defendant in the suit in which the residential property of the plaintiff is situated. The respondents filed written statement denying all the allegations against them. A commission application was filed in which a commissioner was appointed, and he visited the property, and a report was filed as Ext.P4. The plaintiffs filed an application to remit the same as IA No.2/2023 and the same was not pressed. Thereafter, a fresh application was filed as Ext.P5 to appoint a new commissioner to inspect the plaint schedule property. The said application OPC 2762/2024 -4- 2025:KER:27892 was dismissed by Ext.P7. The petitioners challenge Ext.P7 order in this original petition. 2. A counter affidavit is filed by the 1 st respondent, in which it is contended that the petitioners have been filing commission applications one after the other. There are two commission reports; one is dated 08.12.2016 and another dated 29.05.2017 and also Ext.P4 report. The petitioners had filed I.A No.3 of 2022 in the above suit, praying to remit back Ext.P4 report and for a fresh report and plan. However, the petitioners themselves later not pressed I.A No.3/2022. Later, the petitioners filed Ext.P5, IA No.2/2024. The petitioners have not sought to remit back Ext.P4 report and have not filed any objection to it. Ext.P4 report and sketch contain all the particulars that are necessary for the adjudication of the suit. The matters sought to be ascertained in the present application are already reported by the commissioner in Ext.P4. Therefore, no fresh commission be OPC 2762/2024 -5- 2025:KER:27892 appointed, it is only to delay the suit. Hence, it is prayed that the original petition be dismissed. 3. It is not in dispute that no objection is filed to Ext.P4 commission report, and instead, an application is filed to remit back the same, which was not pressed, and a fresh commission application was filed as Ext.P5. 4. The counsel for the petitioners relied on the judgment of this Court in Laly Joseph v. Francis (2023 (2) KLT 516), wherein this Court held that even though there is no specific mention about setting aside the report under Order 26 Rule 10 (3) of CPC, as it refers to conducting a further enquiry, there is no embargo for setting aside a commission report if the court is totally dissatisfied with the commission report. It is also open for the court to remit the commission report for further inquiry and to appoint a fresh commission without setting aside the earlier commission report. The court can appreciate both reports very well and decide accordingly during the trial. OPC 2762/2024 -6- 2025:KER:27892 5. Ext.P5 application was dismissed only on the ground that the petitioners never took any steps to set aside the earlier commission report, and therefore, the present application cannot be allowed. There is no discussion as to whether the commission report which is already there, is devoid of any discrepancies. It is seen in Ext.P5 that the petitioners have stated so many objections against the commission report. As mentioned earlier, it is a fact that there is no objection filed to Ext.P4, but the objections were raised in Ext.P5 application. Thus, the grounds stated for dismissing Ext.P5, cannot stand in light of the decision of this Court in Laly Joseph (supra). Therefore, I am of the considered opinion that Ext.P5 requires reconsideration. In the result, Ext.P7 is set aside, and the Trial Court is directed to reconsider Ext.P5 in the light of Laly Joseph (supra), and give the opportunity to the respondents to contend that a report is already before the court which is proper for the adjudication of the suit. The orders shall be OPC 2762/2024 -7- 2025:KER:27892 passed within a period of three months after summer vacation. Since the suit was originally filed before the Munsiff Court, Manjeri, as OS No.630/2014, the Trial Court is directed to dispose of the same, within a period of three months after the completion of pre-trial steps. The original petition is disposed of. Sd/- BASANT BALAJI JUDGE JS OPC 2762/2024 -8- 2025:KER:27892 APPENDIX OF OP(C) 2762/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PLAINT DATED 15/12/2014IN OS 630/2014 ON THE FILES OF MUNSIFF COURT MANJERI Exhibit P2 TRUE COPY OF WRITTEN STATEMENTS DATED 21/07/2015 FILED BY DEFENDANT 1 AND 2 Exhibit P3 TRUE COPY OF WRITTEN STATEMENT DATED 24/06/2015 FILED BY THE 4TH DEFENDANT ON THE FILES OF THE MUNSIFF COURT, MANJERI Exhibit P4 TRUE COPY OF THE COMMISSION REPORT DATED 16/02/2022 IN OS NO. 630/2014 ON THE FILES MUNSIFF COURT MANJERI. Exhibit P5 TRUE COPY OF IA NO 2/2024 IN IA NO 1/2023 IN OS 630/2014 DATED 01/12/2023 ON THE FILES OF MUSIFF COURT MANJERI Exhibit P6 TRUE COPY OBJECTION FILED BY THE RESPONDENTS DATED 15/12/2023 IN IA 2/2024 IN IA 1/2023 IN OS NO. 630/2014 ON THE FILES OF MUNSIFF COURT MANJERI Exhibit P7 TRUE COPY OF THE ORDER DATED 16/11/2024 IN IA 2/2024 IN OS 66/2024 ON THE FILES OF THE MUNSIFF COURT NILAMBUR RESPONDENT EXHIBITS Exhibit R1(a) The true copy of the commission report dated 08-12- 2016 along with survey sketch filed before the court below in O.S No.630 of 2014, on the files of the Munsiff’s Court, Manjeri Exhibit R1(b) The true copy of the commission report dated 29-05- OPC 2762/2024 -9- 2025:KER:27892 2017 in O.S No.630 of 2014, on the files of the Munsiff’s Court, Manjeri Exhibit R1(c) The true copy of the affidavit filed in support of I.A No.3 of 2022 in OS No.630 of 2014, on the files of the Munsiff’s Court, Manjeri Exhibit R1(d) The true copy of the order dated 02-12-2023 in I.A No.3 of 2022 in O.S No.630 of 2014, on the files of the Munsiff’s Court, Manjeri