High Court of KeralaSingle Judge2014-11-19Original Petition dismissed; suit to be expedit...

K. M. Mohandas, Jayasree Mohandas and Krishna Inn V. Ramnarayanan, Kamalakshy Ramanarayanan and The Managing Director, Sreenidhi Towers

Case / Petition Number:OP(C).No.2220 of 2014 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2014-11-19
Court Decision / Holding: Original Petition is dismissed. The petitioners are allowed to challenge the commission report by adducing evidence at the time of trial, but the immediate relief to set aside the commission report is not granted. The trial court is urged to dispose of the suit expeditiously, preferably within six months from receipt of a copy of the judgment.
Final Disposition: Original Petition dismissed; suit to be expeditiously disposed, with opportunity to challenge the commission report through evidence at trial.

Parties to the Case

Appellants / Petitioners

K. M. Mohandas
Jayasree Mohandas
Krishna Inn (represented by Managing Director Mohandas)

Respondents

Ramnarayanan
Kamalakshy Ramanarayanan
The Managing Director, Sreenidhi Towers

Legal Representation & Advocates

Counsels for Petitioners

• Sri. N. Subramaniam
• Sri. M. S. Narayanan
• Sri. P. T. Girijan
• Smt. Usha Narayanan

Counsels for Respondents

• Sri. K. G. Balasubramanian

Case Synopsis & Summary

This Original Petition (OP(C).No.2220 of 2014) arises from a suit O.S.134 of 2005 filed in the Munsiff Court, Chavakkad, seeking recovery of possession on the strength of title along with a mandatory injunction and prohibitory injunction. A commissioner was appointed, produced plan(s) and a commission report (Exts. C1–C4) after measuring the properties with the Taluk Surveyor. The defendants filed objections to the commission report. The suit proceeded to trial with P.W.1 examined. Subsequently, the petitioners filed I.A.6787/2014 to set aside the commission report and to issue a fresh commission for a new plan and report. The trial court dismissed the petition as belated and lacking bonafide. The petitioners, relying on authorities including Retnamma v. Mehaboob, Rattani v. Dharam Chand and Minita Daphne Nitto v. Margret Benedict Rodrigues, contended that once objections to the commission report are filed, the court has a mandatory duty to consider them and pass orders. The respondents argued that such objections, if any, should have been pressed earlier, that commission reports are only evidence, and that the petition was filed after trial had commenced, which cannot be countenanced. After hearing both sides, the High Court held that while objections to a commission report are permissible, the petition was belated and could be pursued by presenting evidence at trial. Consequently, the Original Petition is dismissed, with liberty reserved for the petitioners to challenge the commission report through evidence at the appropriate stage. The court directed expeditious disposal of the suit, ideally within six months, and affirmed the trial court’s approach consistent with CPC principles.

Provisions of Law Cited

Code of Civil Procedure (CPC)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that once objections to the commission report are filed, there is an obligation on the court to consider the objections and pass orders thereon. Relying on decisions in Retnamma v. Mehaboob, Rattani v. Dharam Chand, and Minita Daphne Nitto v. Margret Benedict Rodrigues, they argued that the court’s duty to adjudicate objections is mandatory. They argued that the commission report is part of the record and objections can be proven through evidence, including examination of the commissioner. The filing after PW1 had begun should not preclude representation of their objections, and the order setting aside the report should have been passed in light of the merits.

Contentions of Respondents

The respondents submitted that the petitioners should have pressed for a hearing on their objections earlier, before the trial commenced. They contended that the commission report is only an item of evidence and that the petitioners retain the right to examine the commissioner and to prove defects; however, such attempts to set aside the commission report after the trial has started cannot be entertained. They maintained that the petition was belated and lacked bonafides and that the court should follow established CPC procedure, allowing objections to be addressed within the trial process.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Retnamma v. Mehaboob	2013(2) KHC 670	Mentioned Only	Cited to support the proposition that objections to commissions should be considered, but not adopted as controlling in the instant belated challenge.
Rattani v. Dharam Chand	1999 AIHC 3581	Mentioned Only	Cited regarding the obligation to consider objections; used in argument but not overruled or distinguished here.
Minita Daphne Nitto v. Margret Benedict Rodrigues	2011(4) K.L.T. 99	Mentioned Only	Cited for similar principle on objections to commission reports; treated as a reference rather than binding authority for the outcome.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 19TH DAY OF NOVEMBER 2014/28TH KARTHIKA, 1936** ## **OP(C).No.2220 of 2014 (O)** ## **--------------------------------------** ## **I.A NO.6787/2014 IN OS NO.134/2005 of MUNSIFF COURT,CHAVAKKAD.** ## **PETITIONERS (PETITIONERS)/DEFENDANTS:** **----------------------------------------------------------------** **1. K.M.MOHANDAS,AGED 63 YEARS, S/O.KALIKANDAN MAMMU,RESIDING AT 'SREENIDHI', AYYANTHOLE VILLAGE AND P.O. 680 003, THRISSUR TALUK AND DISTRICT.** **2. JAYASREE MOHANDAS,AGED 56 YEARS, W/O.MOHANDAS,RESIDING AT 'SREENIDHI', AYYANTHOLE VILLAGE AND P.O. 680 003, THRISSUR TALUK AND DISTRICT.** **3. KRISHNA INN,REPRESENTED BY MANAGING DIRECTOR, MOHANDAS,KIZHAKKE NADA, GURUVAYUR,THRISSUR DISTRICT.** - **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN** **RESPONDENTS:** **------------------------** **1. RAMNARAYANAN,AGED ABOUT 75 YEARS, S/O.PARAMESWARA AYYAR,'HARE KRISHNAN', GURUVAYOOR VILLAGE AND DESOM P.O - 680 101, CHAVAKKAD TALUK,THRISSUR DISTRICT.** **2. KAMALAKSHY RAMANARAYANAN,AGED 72 YEARS, W/O.PARAMESWARA AYYAR,'HARE KRISHNAN', GURUVAYOOR VILLAGE AND DESOM P.O - 680 101, CHAVAKKAD TALUK,THRISSUR DISTRICT.** **3. THE MANAGING DIRECTOR,SREENIDHI TOWERS, THRISSUR-680003.** **R1 & R2 BY ADV.SRI.K.G.BALASUBRAMANIAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **pk** **OP(C).No.2220 of 2014 (O) -------------------------------------** ## **APPENDIX** **PETITIONERS EXHIBITS: -----------------------------------** **EXHIBIT-P1-TRUE COPY OF THE COMMISSION REPOT AND SURVEY PLAN. EXHIBIT-P2-TRUE COPY OF THE OBJECTION TO THE COMMISSION REPORT. EXHIBIT-P3-TRUE COPY OF THE PETITION NO.I.A 6787/2014. EXHIBIT-P4-TRUE COPY OF THE PETITION TO ADVANCE HEARING OF I.A 6787/2014. EXHIBIT-P5-TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, CHAVAKKAD IN I.A 6787/2014 IN O.S 134/2005.** **RESPONDENTS EXHIBITS: NIL** **//TRUE COPY//** **P.S.TO JUDGE** **pk** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - O.P.(C). No. 2220 of 2014 - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of November, 2014. ## **JUDGMENT** The petitioners, who are the defendants in O.S.134 of 2005 before the Munsiff's Court, Chavakkad have come up with this Original Petition assailing Ext.P5 order whereby the court below refused to set aside the commission report. 2. The suit O.S.134 of 2005 was one for recovery of possession on the strength of title and for mandatory injunction and prohibitory injunction. A commissioner was deputed and he prepared plans and reports and submitted as Exts. C1 to C4. Properties were measured with the help of Taluk Surveyor and plan was drawn up and submitted before the court below. It is not in dispute that the defendants have filed their objection to the commission report. 3. The suit was listed for trial and P.W.1 was examined. Thereafter the defendants filed I.A.6787 of 2014 O.P.(C).2220/2014. 2 to have the commission report set aside and a fresh commission issued for obtaining a plan and report. The court below, by the impugned order, dismissed the petition holding that it is highly belated and there is no bonafides in the petition. 4. Adv. N. Subramaniam, learned counsel appearing for the petitioners relying on the decisions reported in Retnamma v. Mehaboob (2013(2) KHC 670), Rattani v. Dharam Chand (1999 AIHC 3581) and Minita Daphne Nitto v. Margret Benedict Rodrigues (2011(4) K.L.T. 99) contended that once objection is filed to the commission report, it is the obligation of the court to consider the objection and pass orders thereon. This mandatory duty on the court has not been followed in the case on hand and therefore the impugned order is unsustainable. 5. Adv. K.G. Balasubramanian, counsel appearing for the respondents on the other hand contended that if the 3 O.P.(C).2220/2014. petitioners were serious about their objection, they should have pressed for a hearing on the same before the trial started. It is significant, according to the learned counsel, that the suit was listed on consent of both the parties. Further it is pointed out that commission report is only an item of evidence and the petitioners have the freedom to examine the commissioner and establish their objection and show that the commission report is not acceptable. That facility is always open and available to the petitioners. The present attempt to get the commission report set aside by filing an independent application after the trial has commenced cannot be countenanced. 6. After having heard learned counsel on both sides and after perusing the decisions relied on by the learned counsel for the petitioners, it is felt that there is considerable force in the submission made by the learned counsel for the respondents. It is true that in the decision cited by the learned O.P.(C).2220/2014. 4 counsel for the petitioners, it is stated that the objection filed by the petitioners will have to be considered on its merits and orders passed thereon. 7. Going by the provisions of the Code of Civil Procedure the commission report forms part of the records and it is only an item of evidence. Certainly the parties are entitled to file their objections to the commission report and agitate their case. In all those decisions, objections were filed immediately after the commission reports were filed and that was sought to be established. In the case on hand, it was only after P.W.1 has been examined that an application was filed to have the commission report set aside. It is true that they had filed their objection before. But nothing prevented the petitioners from calling upon the court to consider their objection on earlier occasion if they were so serious about the same. 5 8. Whatever that be, even now the petitioners are not precluded from establishing that the commission report is not acceptable or is not correct or cannot be accepted for various reasons which they have to prove at the time of evidence. Merely because the court below has tentatively held that there is no reason to reject the commission report, that cannot override the right of the petitioners to establish that the commission report is not acceptable based on other items of evidence to be adduced in the case. They have the right to examine the commissioner also to show that the commission report cannot be accepted. This right available to the petitioners is not shut out by the present order. Reserving the liberty of the petitioners to show that the commission report is not acceptable for reasons to be shown by adducing evidence at the time of trial, this Original Petition is dismissed. Being a suit of the year 2005, the trial court may make every endeavour to dispose of the suit as O.P.(C).2220/2014. 6 expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. P. BHAVADASAN, JUDGE sb.