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2025 DIGILAW 2634 (KER)

Sami Velladan v. Muhammed

2025-10-07

MURALI PURUSHOTHAMAN

body2025
ORDER : Murali Purushothaman, J. This review petition is filed against the judgment dated 12.08.2025 passed by this Court in O.P.(C) No.2351 of 2022. 2. The review petitioners preferred the original petition against Ext.P11 order passed by the Munsiff Court, Manjeri rejecting Ext. P9 application filed by them under Order XXVI Rule 10 of the Code of Civil Procedure (CPC) to set aside Ext.P7 Commission report and Ext.P8 plan. It was contended that in Ext.P8 plan, plaint B schedule way, which is the disputed property is not identified and marked. It was also contended that the Advocate Commissioner has not ascertained and reported other requisite particulars sought for in Ext.P6 application. According to the petitioners, the report and plan are not useful for resolving the controversy in the suit and the trial court ought to have set aside the Commission report or in the alternative, remitted the report and plan to the Commissioner for ascertaining the matter requested in Ext.P6 application. 3. The learned Munsiff, after examining the Commissioner, dismissed Ext.P9 application by Ext. P11 order stating that the reasons stated in the application are insufficient to set aside the Commission report. The learned Munsiff observed that the Commissioner has identified and marked the plaint schedule properties as required by the petitioners in Ext.P6 application. This Court, finding no error of jurisdiction or error of law in Ext. P11 order, refused to interfere with it in the exercise of jurisdiction under Article 227 of the Constitution of India and dismissed the original petition. 4. In this review petition, it is stated that, in Ext. P11, the trial court has proceeded on the mistaken premise that the plaint B schedule way is already marked by the Commissioner in Ext.C2(a), whereas the same is only a rough sketch. It is also stated that the trial court lost sight of Ext. P12 order by which earlier sketch and report were remitted to the Commissioner to measure out and identify the plaint B schedule way, and also to incorporate the other particulars sought for in Ext.P6 application. It is therefore contended that when the mandate of Ext. P12 order is not complied with by the Commissioner, the finding of this Court confirming Ext.P11 order on the ground that there is no error of law or error of jurisdiction, amounts to an error apparent on the face of the record. It is therefore contended that when the mandate of Ext. P12 order is not complied with by the Commissioner, the finding of this Court confirming Ext.P11 order on the ground that there is no error of law or error of jurisdiction, amounts to an error apparent on the face of the record. It is further contended that, though this Court had referred to the contention of the petitioners that Ext.P8 plan submitted by the Commissioner is bereft of plotting data, necessary to plot the field, and in the absence of the same, Ext.P8 plan cannot be relied on, this Court did not answer the said contention in the impugned judgment, which amounts to an error apparent on the face of the record. 5. Heard Sri.Rajesh R Kormath, the learned counsel for the review petitioners and Sri. S.Ranjit, the learned counsel for the respondents. 6. The object of deputing an Advocate Commissioner for local inspection under Order XXVI Rule 10 of CPC is to gather evidence like identity of the property and its physical features. The Commission report will be helpful to clear or explain any point which is left doubtful in the evidence on record. Though the power conferred under Order XXVI Rule 9 can be exercised at any stage, the trial courts are usually expected to decide the issue regarding acceptability of the Commission report before proceeding with the trial of the suit. On the basis of Ext.P9 application to set aside Ext.P7 Commission report and Ext.P8 plan inter alia on the ground that the report does not mention the existence and lie of the plaint B schedule way, the learned Munsiff examined the Commissioner and rejected the application stating that the Commissioner has identified and marked the plaint schedule properties as required by the petitioners in Ext.P6 application. Thus, the trial court has entered a finding on the acceptability of Ext.P7 Commission report and Ext.P8 plan. 7. It is the case of the respondents that the petitioners could not point out plaint B schedule way to the Commissioner and the Commissioner cannot be expected to mark a way which is not in existence and that whether the plaint B schedule way is in existence or not is a matter for evidence. 8. It is stated by the petitioners that Ext. C2(a) is only a rough sketch. In Ext. 8. It is stated by the petitioners that Ext. C2(a) is only a rough sketch. In Ext. P11, the learned Munsiff has observed as follows: “CW1 deposed that she measured the property as shown by the parties. She has measured the property as per old survey and new survey numbers as per the petition and has noticed the disputed way as B1 to B2 in Ext. C1(a).” Ext. C1(a) is Ext. P8 plan. It is Ext. C2(a) (Ext. P5) rough sketch that was remitted to the Commissioner. The learned Munsiff has stated that the Commissioner has noticed the disputed way as B1 to B2 in Ext. C1(a) and marked the plaint schedule properties as required by the petitioners in Ext. P6. 9. In view of the finding of the trial court that the Commissioner has identified and marked the plaint schedule properties as required by the petitioners in Ext.P6 application, this Court refused to interfere with Ext.P11 order. The finding of this Court confirming Ext.P11 order is not vitiated by any error apparent on the face of the record. In view of the nature of the finding rendered by this Court, the contention raised by the petitioners during the hearing of the original petition that Ext. P8 plan is bereft of plotting data was not adverted to. 10. The parties are required to prove their case by way of evidence. They have to give evidence in support of their case. After adducing evidence, if the court deems it proper that no effective decree can be passed on the strength of the Commission report and plan, or that the report and sketch are insufficient to elucidate the matter in dispute in the suit, it will be open to the court to appoint a fresh Advocate Commissioner or to remit the Commission report for further enquiry. 11. During the course of evidence or after adducing the evidence, if the trial court deems it necessary that Ext. P7 report and P8 sketch are insufficient to elucidate the matter in dispute in the suit, it shall be open to the trial court to remit the report for further inquiry or to appoint a fresh Advocate Commissioner for the said purpose, on appropriate application or otherwise. With the above observations and liberty, this review petitionis dismissed.