OP(C).No.3076 OF 2018

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **OP(C).No.3076 OF 2018** **AGAINST THE ORDER DATED 26.10.2018 IN I.A.NO.1107/2018 IN AS 59/2010 OF SUB COURT, OTTAPPALAM** ## **PETITIONERS-RESPONDENTS IN IA & AS/DEFENDANT NO.2 AND LR OF D NO.1 IN O.S:** **1 UNNIKRISHNAN, S/O.VELU, AGED 56, RESIDING AT KORANGATTIL VEEDU, KOTTAKKAL AMSOM AND DESOM, ERANAD TALUK, MALAPPURAM DISTRICT- 676 505.** - **2 MURALI,** **AGED 43, S/O.(LATE) VASU, RESIDING AT KORANGATTIL VEEDU, KOTTAKKAL AMSOM AND DESOM, P.O.KOTTAKKAL, ERANAD TALUK, MALAPPURAM DISTRICT-676 505.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SMT.B.ANUSREE** ## **RESPONDENTS-PETITONERS IN IA/APPELLANT IN AS PLAINTIFF IN O.S:** ## **LAKSHMANAN,** **AGED 63, S/O.CHINNA SWAMI GOUNDER, NO. 10, KOUNDAMPALAYAM ROAD, EDAYARPALAYAM, COIMBATORE DISTRICT, TAMIL NADU -641 025.** **R1 BY ADV. SMT.MEENA.A. R1 BY ADV. SRI.VINOD RAVINDRANATH** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No.3076 OF 2018** **2** ## **J U D G M E N T** The defendants in O.S.No.9/2001 on the files of the Munsiff Court, Mannarkkad, have filed this original petition, invoking the powers of this Court under Article 227 of the Constitution of India, assailing Ext.P9 order of the Lower Appellate Court, as per which, it has allowed at the appellate stage, an application filed by the plaintiff - who is the respondent herein, to take out an Advocate Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure (CPC), so as to demarcate the plaint schedule property as also the property of the defendants. 2. Sri.P.B.Krishnan, learned counsel appearing for the petitioners, made extensive arguments with respect to the powers of the Courts under Order XXVI Rule 10 of the CPC, primarily contending that unless the already available Commission Report and Plan - which were marked as Exts.C3 and C4 by the Trial Court - are “set aside” a new Commission to conduct a site inspection could not have been be ordered by the Lower Appellate Court and that too in an appeal at the instance of the plaintiffs against the decree of the Trial Court **OP(C).No.3076 OF 2018** **3** dismissing the suit. 3. Sri.P.B.Krishnan cited several precedents in support of this proposition, including in **Swami Prmananda Bharathi v. Swami Yogananda Bharathi [1985 KLT 144]** , asserting that this principle of law has now attained the status of a doctrine, which has stood the test of time **.** He thus prays that Ext.P9 be set aside, since, through the said order, the Lower Appellate Court has permitted a new Commission to be appointed, though the earlier Report and Plan placed on record by the earlier Commissioner has not been 'set aside'. 4. In response, Sri.T.Krishnanunni, learned Senior Counsel instructed by Smt.Mini, learned counsel appearing for the respondent, submits that whatever be the principles of law relied upon by the respondent, in the case at hand, the fact remains that, through Ext.P6 judgment - which was delivered by a Judge of this Court in F.A.O.(R.O)No.150/2015 - his client and the other parties to the suit had been permitted to make an application for appointment of an Advocate Commissioner for proper identification of the plaint schedule property; and therefore, that the Lower Appellate Court cannot be found in **OP(C).No.3076 OF 2018** **4** error in having issued Ext.P9 order. The learned Senior Counsel vehemently asserted that a glance through the facts involved in this case would show that the directions in Ext.P6 judgment was completely justified and that, in any event of the matter, since it is conceded that the petitioners have not challenged the said judgment further, they are bound by the same and cannot now turn around and contend that an application for appointment of a new Commissioner could not have been preferred before the Lower Appellate Court or that it could not have been allowed. The learned Senior Counsel, therefore, prays that this original petition be dismissed. 5. Even though there are various allegations, averments and assertions made by the parties against each other in this case, I do not deem it necessary or appropriate at this stage to look into it in detail, for various reasons; but essentially because, the crux of the controversy between them is only as regards Ext.P9 order, which allowed the appointment of an Advocate Commissioner. 6. The acme contention of Sri.P.B.Krishnan, as I have already recorded above, is that unless the First Appellate **OP(C).No.3076 OF 2018** **5** Court, had entered into a specific finding that the earlier Commission Report and Plan - which had been filed before the Trial Court, namely Exts.C3 and C4 respectively - are 'set aside', a new Commission could not have been appointed. 7. I am aware that Sri.P.B.Krishnan is relying on **Swami Premananda Bharathi** (supra) in support of this assertion, but I do not require to join issue with this, because this Court is of the firm opinion that it is only in the event where a Court is, for any reason, dissatisfied with the proceedings of the Commissioner, that it may direct such further enquiry to be made, as it shall deem fit. This is the mandate of law, as is available from Order XXVI Rule 10(3) of the CPC and this is the provision that has been noticed by the learned Division Bench in **Swami Premananda Bharathi** (supra). 8. Of Course, the learned Division Bench used the word 'set aside' but that is only to mean, going by the express phraseology employed in order XXVI Rule 10 of the CPC, that unless the Trial Court or the First Appellate Court had reasons to believe and to be satisfied, the proceedings of the Commissioner was not satisfactory, a second Commission could **OP(C).No.3076 OF 2018** **6** have been requisitioned or appointed. 9. The word 'set aside' in the judgment can only be construed to such effect and therefore, I have no reason to differ from the holdings therein and I am certainly bound by the same. 10. In that perspective, the only question before me is whether Ext.P9 order records dissatisfaction of the First Appellate Court with the proceedings of the earlier Commissioner, namely Exts.C3 and C4 Reports and Plan respectively. 11. Before moving forward, I must also record that the competence of the First Appellate Court to consider an application for appointment of the Commissioner cannot be considered by this Court because, as I have already indicated above, this was a liberty that was granted to the respondent herein by this Court itself through Ext.P6 judgment, which has became final **i** nter parties **.** 12. Therefore, qua the respondent herein, petitioners cannot raise a contention that he could not have preferred an application for appointment of a Commissioner. **OP(C).No.3076 OF 2018** **7** 13. Thus, as I have noted above, the sole question which is now relevant for my consideration is whether the First Appellate Court had acted within its jurisdiction in having issued Ext.P9 order and whether it has recorded its dissatisfaction with the earlier proceedings of the Commissioner appointed by the Trial Court. 14. Even a cursory look through Ext.P9 order would make it ineluctable that the First Appellate Court has considered the contentions of the parties on merits and has found that unless the properties are identified as per the available title documents, namely Exts.A2 and B1, the spirit and tenor of the observations and directions in Ext.P6 judgment of this Court cannot be fructified. 15. I find favour with Ext.P9 to that extent because, in Ext.P6 judgment, a learned Judge of this Court set aside an earlier order of remand by the First Appellate Court holding as under: “6. On a perusal of the impugned judgment, I am of the view that the Court below did not enter a finding that the decree required a reversal for non-identification of the property. In fact, the lower appellate **OP(C).No.3076 OF 2018** **8** court did not venture to identify the property with the available materials. With a closed mind, it appears the lower appellate Judge remanded the case, without taking pains to see whether the indentification attempted by the trial court was proper or not. Therefore, I am of the view that the remand order is legally unsustainable.” ## 16. After holding so, the appeal was allowed with the following directions. “The impugned order of remand is hereby set aside. The lower appellate court shall reconsider the matter with reference to the pleadings, evidence - both oral and documentary - and dispose of the case on merits. If any of the parties applies for production of additional evidence or taking out a Commission for proper identification, the lower appellate cour shall consider those applications on merit and pass appropriate order.” 17. It is thus obvious that this Court directed the First Appellate Court to make an endevour to identify the property, even though the Trial Court had found in its judgment that such identification is not possible and would be a 'herculean task'. 18. This view of this Court becomes fortified because, in paragraph No.6 afore extracted, the learned Judge has also accused the First Appellate Court in having ordered a remand **OP(C).No.3076 OF 2018** **9** without taking pains to see whether the identification of the property is possible or otherwise. It is in such context, that the learned Judge allowed the parties to apply for taking out a new Commission for proper identification of the properties, which of course, can only be seen as an additional piece of evidence and nothing more. 19. In such perspective, I have little doubt in my mind that the application preferred by the respondent before the First Appellate Court is certainly maintainable and that the said Court was enjoined in law to consider the same on its merits. 20. The remaining issue that thus survives is whether the Trial Court has now acted within its powers under Order XXVI of the CPC in having appointed a fresh Commission. 21. As is clear from the impugned order, the Trial Court, after going through the merits of the contentions of the parties, has found that it is necessary to identify the property as per the documents. The court thereupon concluded that “Exts.C3 -Report and C4 - Plan are not helpful to decide the dispute”. (sic) 22. This view of the Trial Court, though not recorded in **OP(C).No.3076 OF 2018** **10** detail, is justified because, the property has never been identified by the Trial Court and the said Court has recorded that it is not possible. However, when this Court granted an opportunity to the respondent/plaintiff to make an effort to identify his property based on the documents, it was certainly obligated on the part of the First Appellate Court to do so; for which purpose, it considered the application for appointment of the Commissioner to identify the property based on the title documents. 23. The subjective dissatisfaction of the First Appellate Court on the contents of Exts.C3 and C4, though explained pithily, is manifest from the order since, the said Court has recorded that they are not helpful in deciding the dispute. 24. That apart, I fail to understand why the petitioners should be so anxious to attack Ext.P9 order because, it is now well settled in law that even if a new Commission is appointed, leading to a new report being filed, the original reports, namely Exts.C3 and C4 respectively, are not effaced from the records and that it continues to be on it, thus enabling the First Appellate Court, as also any other Court in future, to assess the **OP(C).No.3076 OF 2018** **11** same and decide whether the merits of the contentions are substantiated therefrom or otherwise. This is apodictic from the provisions of Order XXVI Rule 10 of the CPC which mandates that every report of the Commissioner would become a part of the records of the case. 25. That said, the apprehension of the petitioners, as voiced by Sri.P.B.Krishnan, appears to be that if a new Commission is taken out and a fresh report is brought in, it will be deemed that the earlier report and plan namely Exts.C3 and C4 respectively, have lost its forensic worth or value. I am afraid that this is not the way the law operates, since if a new Commission Report is brought on record, the Lower Appellate Court will have to consider all the reports available on record and to then decide the matter taking into account its worth and its probative value. 26. In such view of the matter, I see no prejudice having been caused to any of the parties, particularly to the petitioners; and I must record that Sri.P.B.Krishnan, learned counsel for the petitioners submitted that if this Court construes the directions in Ext.P9 order to be one under Order **OP(C).No.3076 OF 2018** **12** XXVI Rule 10(3) of the CPC, his clients will not press the challenge against it further. 27. I have no doubt in my mind and as is evident from my observations above, that the enquiry that the First Appellate Court is now going forward with, pursuant to Ext.P9 order, can only be under Order XXVI Rule 10(3) of the CPC and that all contentions as are available to the rival parties, will remain open and left to them to pursue, as and when they are entitled to do so and at the appropriate time. In the result, this original petition is dismissed, subject to my observations above, thus confirming Ext.P9 order of the Lower Appellate Court. In the nature of the circumstances seen herein, I make no order as to costs and direct the parties to suffer their respective costs. ## **SD/-** rp ## **DEVAN RAMACHANDRAN JUDGE** **OP(C).No.3076 OF 2018** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PLAINT DATED 12.01.2001 IN O.S.NO.9 OF 2011 ON THE FILE OF THE MUNSIFF-MAGISTRATE COURT, MANNARKKAD.** **EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT DATED 25.05.2002 IN O.S.NO.9 OF 2001 ON THE FILE OF THE MUNSIFF-MAGISTRATE COURT, MANNARKKAD, FILED BY THE PETITIONERS.** **EXHIBIT P3 A TRUE COPY OF THE COMMISISON REPORT AND PLAN DATED 25.07.2008 IN O.S.NO.9 OF 2001 ON THE FILE OF THE MUNSIFF-MAGISTRATE COURT, MANNARKKAD. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 30.03.2010 PASSED BY THE MUNSIFFMAGISTRTAE, MANNARKKAD, IN O.S.NO.9 OF 2001. EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 11.06.2015 IN A.S.NO.59 OF 2010 PASSED BY THE SUBORDINATE JUDGE OF OTTAPPALAM. EXHIBIT P6 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 02.07.2018 IN F.A.O.(RO)NO.150 OF 2015. EXHIBIT P7 A TRUE COPY OF THE AFFIDAVIT IN APPLICATION, I.A.NO.1107 OF 2018 DATED 29.07.2018 IN A.S.NO.59 OF 2010 ON THE FILE OF THE SUB COURT, OTTAPALAM. EXHIBIT P8 A TRUE COPY OF THE OBJECTION DATED 06.08.2018 FILED BY THE PETITIONERS IN I.A.NO.1107 OF 2018 IN A.S.NO.59 OF 2010 ON THE FILE OF THE SUB COURT, OTTAPALAM. EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 26.10.2018 IN I.A.NO.1107 OF 2018 IN O.S.NO.59 OF 2010 ON THE FILE OF THE SUB COURT, OTTAPALAM.**