High Court of KeralaSingle Judge2025-04-01Original petition disposed of.

Rukhiya and others v. Mary John and others

Case / Petition Number:OP(C) 2762/2024

Neutral Citation:2025:KER:27892

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji
Judgment Date: 2025-04-01
Court Decision / Holding: Ext. P7 is set aside; the Trial Court is directed to reconsider Ext. P5 in light of Laly Joseph (supra) and allow the respondents to contend that a report already before the court is proper for adjudication. The Trial Court should pass orders within three months after the summer vacation, and dispose of OS 630/2014 within three months after pre-trial steps. The original petition is disposed of.
Final Disposition: Original petition disposed of.

Parties to the Case

Appellants / Petitioners

Rukhiya
Sainaba
Musthafa
Subaida
Abdul Nazar

Respondents

Mary John
Kundamthodika Sulaiman
Re-Survey Superintendent Nilambur Taluk
State of Kerala represented by District Collector, Malappuram

Legal Representation & Advocates

Counsels for Petitioners

• M. Devesh
• M. Anuroop Murshid Ali
• M. Jyothis Mary

Counsels for Respondents

• P. Mohammed Sabah
• Jasneed Jamal
• Libin Stanley (K/250/2015)
• Saipooja (K/001130/2016)

Case Synopsis & Summary

This is an original petition (OP(C) 2762/2024) heard by a Single Judge of the Kerala High Court, challenging Ext. P7 (16 November 2024) in IA 2/2024 of OS No. 66/2024 before the Munsiff Court, Nilambur. The suit seeks fixation of boundary, a mandatory injunction, and a prohibitory injunction over plaint schedule property alleged to belong to the petitioners’ father. The Commission Reports (Ext. P4) prepared in 2016–2017 and 2022 were relied upon to adjudicate the matter, culminating in Ext. P5 (IA 2/2024) for appointing a fresh commissioner. Ext. P5 was dismissed by Ext. P7, prompting attack via this original petition. The respondents contend that Ext. P4 already furnishes the necessary particulars and that pursuing a fresh commission would only delay the suit; the petitioners had previously pursued IA 3/2022 to remit Ext. P4 back but did not press it, and they now press Ext. P5. The court references Laly Joseph v. Francis (2023 (2) KLT 516) to underscore that there is no embargo on setting aside a commission report if dissatisfied, or remitting for further inquiry. The High Court ultimately sets aside Ext. P7, directs the Trial Court to reconsider Ext. P5 in light of Laly Joseph, and grants three months after the summer vacation to decide the matter, with OS 630/2014 to be disposed in due course. The petition is disposed of.

Provisions of Law Cited

Order 26 Rule 10(3) CPC

Legal Doctrines & Maxims

Power of court to set aside or remit a commission report and appoint a fresh commissioner when dissatisfied with the report; no embargo on setting aside a commission report if the court is totally dissatisfied (supported by Laly Joseph v. Francis)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the Commission Report (Ext. P4) may be subject to remand for further enquiry or be set aside if totally unsatisfactory, citing Laly Joseph v. Francis to justify appointing a fresh commissioner or remitting Ext. P4 for reconsideration (IA 2/2024). They argue that Ext. P4 and prior commission reports (2016–2017) may be reconciled with fairness to adjudicate the boundary dispute; Ext. P5 should not have been dismissed, as the court has inherent power to ensure a proper adjudication by possibly appointing a fresh commissioner or remitting for further inquiry.

Contentions of Respondents

The respondents submit that Ext. P4 already provides necessary particulars, that there were previous commission reports, and that petitioners did not press IA 3/2022 to remit Ext. P4; Ext. P5 seeks to delay adjudication. They argue no fresh commission is necessary since the present application is an attempt to re-run the process, contrary to efficiency and timely disposal of OS 630/2014.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Laly Joseph v. Francis	2023 (2) KLT 516	Positive	The High Court relies on this decision to affirm that there is no embargo on setting aside a commission report if the court is totally dissatisfied, and it may remit for further enquiry or appoint a fresh commissioner.

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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 BASANT BALAJI TUESDAY, THE 1[ST] 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- **==> picture [57 x 57] intentionally omitted <==** ## 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- **==> picture [57 x 57] intentionally omitted <==** ## 2025:KER:27892 ## JUDGMENT (Dated this the 1st 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 3rd 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- **==> picture [57 x 57] intentionally omitted <==** 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 1st 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- **==> picture [57 x 57] intentionally omitted <==** 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- **==> picture [57 x 57] intentionally omitted <==** 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- **==> picture [57 x 57] intentionally omitted <==** 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- **==> picture [57 x 57] intentionally omitted <==** ## 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 08-122016 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- **==> picture [57 x 57] intentionally omitted <==** 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