Saraswathy Bai v. Ullas and Subha Kumari

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** ## **OP(C).No. 2422 of 2013 (O) ---------------------------** **AGAINST THE ORDER IA NO.229/2013 IN OS 288/2010 of MUNSIFF COURT,CHENGANNUR DATED** **PETITIONER(S): -------------** **SARASWATHY BAI, AGED 71,** **PUSHPAMANGALATH VEEDU, KARAKKAD MURI, MULAKUZHA VILLAGE, CHENGANNUR TALUK.** **BY ADVS.SRI.T.K.VENUGOPALAN SRI.V.V.VARGHESE** **RESPONDENT(S):** **--------------** **1. ULLAS, S/O.SUKUMARAN** **ULLAS BHAVAN, KOTTA PO, KARAKKAD MURI, MULAKUZHA VILLAGE, CHENGANNUR TALUK. 689 504. 2. SUBHA KUMARI, W/O.ULLAS ULLAS BHAVAN, KOTTA PO, KARAKKAD MURI, MULAKUZHA VILLAGE, CHENGANNUR TALUK. 689 504.** **R2 BY ADV. SRI.VARGHESE C.KURIAKOSE R2 BY ADV. SRI.G.MANU KRISHNAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jm/** **OP(C).No. 2422 of 2013 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXT.P1 - A TRUE COPY OF THE COMMISSION APPLICATION, I.A.NO.1533/2010** **EXT.P2 - A TRUE COPY OF THE COMMISSION REPORT DATED 2-12-2010 EXT.P3 - A TRUE COPY OF THE I.A.NO.229/2013 IN OS NO.288/2010 EXT.P4 - A TRUE COPY OF THE ORDER DATED 19-3-2013 IN IA NO.229/2013.** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** ## **\\ TRUE COPY \\** **PA TO JUDGE** ## **ANIL K.NARENDRAN, J.** ======================== **O.P.(C) No.2422 of 2013** ======================== Dated this the 12[th] day of June 2017 ## **JUDGMENT** This original petition is filed under Article 227 of the Constitution of India challenging Ext.P4 order passed by the Munsiff's Court, Chengannur in I.A.No.229/2013 in O.S.No.288/2010. 2. O.S.No.288/2010 is filed by the petitioner/plaintiff seeking a permanent prohibitory injunction restraining the respondents/defendants from encroaching into the plaint schedule property and cutting open a pathway through the plaint schedule property or its portion and for other reliefs. 3. Along with the suit, the plaintiff filed an interlocutory application for the appointment of a commission for local inspection to ascertain and report regarding the lie of the property; as to whether there is any pathway through the plaint schedule property; and also regarding the pathway alleged to have been used by the defendants for access to their property through the property belonging to Smt. Josna and also to draw a rough sketch. 4. The materials on record would show that the Commissioner appointed by the Trial Court in the aforesaid **2** ## O.P.(C) No.2422 of 2013 interlocutory application inspected the property and submitted a report dated 2.12.2010. After the said report, the respondents/defendants filed I.A.No.229/2013, seeking for an order to depute another Commissioner and to direct the Commissioner to file a fresh report regarding the matters, which are already reported by the Advocate Commissioner, who conducted the inspection on 2.12.2010. The relief sought for in the interlocutory application was opposed by the petitioner/plaintiff by filing a counter affidavit. 5. After considering the rival contentions, the Trial Court, by Ext.P4 order dated 19.3.2013, allowed the said interlocutory application in part for the limited purpose of further enquiry regarding the matters sought to be ascertained in item Nos.2 to 7 except item No.1 in that interlocutory application. Accordingly, Adv.Maggie was appointed as the Commissioner and the matter was listed to 11.04.2014 for the report of the Advocate Commissioner. 6. Feeling aggrieved by Ext.P4 order passed by the Trial Court, the petitioner/plaintiff has approached this Court in this original petition. 7. On 12.7.2013, while admitting the original petition on file, this Court granted an interim order staying further proceedings pursuant to Ext.P4 order dated 19.3.2013 for a period of two months, **3** O.P.(C) No.2422 of 2013 which order was extended until further orders on 9.9.2013. 8. I heard the arguments of the learned counsel for the petitioner/plaintiff and also the learned counsel for the second respondent/second defendant. 9. The sole issue that arises for consideration in this original petition is as to the legality or otherwise of Ext.P4 order passed by the Trial Court, by which the interlocutory application filed by the defendants for appointment of an Advocate Commissioner to ascertain certain additional aspects, were allowed by the said Court. 10. The reasoning of the Trial Court for allowing such an application, as discernible from Para. 2 of Ext.P4 order, reads thus: “2. On perusal of the petition filed by the plaintiff for appointing a commissioner it is seen that the item No.1 sought to be ascertained was already ascertained by the earlier commissioner as per the request of the plaintiff as Item No.1,2,3 in I.A.No.288/10. Some of the matters in Item No.2 sought to be ascertained was also ascertained as answer to Item No.4 in I.A.No.288/10. But according to the petitioner, he has got some objection regarding the commission report filed in this case and as such, further enquiry is necessary for the just decision of the case. So by taking into consideration of the above aspects, I am of the view that this I.A. can be allowed **4** ## O.P.(C) No.2422 of 2013 in the interest of justice. So this I.A.is allowed in part for the limited purpose of further enquiry regarding the matters sought to be ascertained in Item No.2 to 7 except Item No.1 in this I.A. So, this I.A. is allowed. Adv.Maggie is appointed as the Commissioner. Pay batta of Rs.1,250/- for Commission report. Call on 11.04.2013.” 11. In **Francis Assissi v. Sr.Breesiya [2017 (1) KLT 1041]** , a Division Bench of this court has laid down the legal position on the question of issuance of second commission. Paras. 41 and 42 of the said decision read thus: “41. The question of setting aside of earlier commission report before issuing a second commission would arise only in case of commission issued for effecting partition. In all other cases there is no necessity, requirement or need to set aside the earlier report, before issuing a second commission either for the very same purpose or for some other purposes. No such mandate is included an where in Rule 1 to 13 to Order XXVI. At the same time, we cannot shut our eyes into certain realities which are prevailed in certain part of Kerala in issuing commissions for the very same purpose. Such practice definitely is detrimental to the system and hence has to be deprecated. But at the same time, it does not mean that the court is not empowered to **5** O.P.(C) No.2422 of 2013 issue one or two or three commissions if the situation warrants so. 42. The restriction of issuing commission one after another has to be understood under the public policy having speedy disposal, time management, cheaper administration of justice and the like. So the legal position can be summarised in the following lines: (i) There is no provision for setting aside the deposition recorded by the Commissioner or the report submitted thereof under R.1 to 8 of O.XXIV C.P.C. which are dealing with issuance of commission for examination of witnesses. ii) There is no provision anywhere in R.1 to 8 of O.XXIV, prohibiting issuance of a second commission when it is found to be necessary, especially when the report is incomplete or the witness examined was recalled, or a new witness list is submitted and allowed. iii) There is no provision for setting aside the report submitted by the commissions issued for making local investigation under R.9 to 10 (3) of O.XXVI C.P.C. On the other hand, R.10(2) enables the court to have a second commission to conduct further enquiry. The question of setting aside the earlier one does not arise and it is not at all necessary to set aside the earlier one under R.9 to 10 (3) of O.XXVI C.P.C. iv) The legal position is very same in the matter of **6** O.P.(C) No.2422 of 2013 issuance of commission for scientific investigation, performance or ministerial act and sale of movable property wherein the provisions of R.10 of Order XXVI C.P.C. made applicable as if they apply in relation to a commission appointed under R.9 of O.XXVI C.P.C. v) The very same legal position is also made applicable in the matter of commission to examine accounts governed by R.11 to 12(2) of O.XXVI C.P.C. wherein also the scope of a “further enquiry” provided. vi) The question of setting aside or varying or confirming the report of a commission would arise only in the case of a commission appointed for the purpose of effecting partition under R.13 to 14(3) of O.XXVI C.P.C. It mandates that when the commission report is confirmed or varied, the court is bound to pass a decree in accordance with the same and when it is set aside, to issue another commission for that purpose. So setting aside of earlier commission report is a condition precedent in the matter of commission appointed for the purpose of making partition. vii) The issuance of successive commission either under Rr.1 to 8, or under Rr.10 to 13 of O.XXIV without having dissatisfaction either the report or proceeding of the commissioner earlier appointed, is deprecated. **7** O.P.(C) No.2422 of 2013 viii) The dissatisfaction if any entertained by the court in the proceedings of commissioner or the report thereof under Rr.10 to 13 of O.XXIV C.P.C., is only an initial assessment in nature, shall not be read as substitute for set aside the report or wiping off the same from the record or evidence. ix) Going by the phraseology used in various rules viz. 1 to 13 of O.XXVI even a second commission is permissible though it may result in conflicting report. There is no scope for exercising the jurisdiction under S.151 C.P.C. in respect to the matters covered by R.1 to 15 of O.XXVI C.P.C. x) Rule 8 of Order XXVI C.P.C. became redundant by the incorporation of R.4A in O.XXIV C.P.C. 12. As held by the Division Bench of this Court in **Francis Assissi's case (supra),** Rule 10 (2) Order XXVI of Code enables the Court to have a second commission to conduct further enquiry. In the said decision, the Division Bench has also deprecated the practice of issuance of successive Commissions either under Rule 1 to 8 or Rule 10 to 13 of Order XXVI of the Code, without having dissatisfied either on the report or proceedings of the Commissioner earlier appointed. Therefore, dissatisfaction of the Court, either on the report or proceedings of the Commissioner earlier appointed is a sine-quo-non for invoking the powers of the Court to have a second commission for **8** ## O.P.(C) No.2422 of 2013 further enquiry. From a reading of Ext.P4 order passed by the Trial Court, it is not discernible as to whether such a finding was arrived at before allowing I.A.No.229/2013 filed by the respondents/defendants. In that view of the matter Ext.P4 order of the Trial Court cannot be sustained. 13. In the result,, Ext.P4 order passed by the Trial Court is set aside and the said Court directed to reconsider I.A.No.229/2013 in O.S.No.288/2010 and pass a reasoned order taking note of the law laid down by the Division Bench of this Court in **Francis Assissi's case (supra)** . 14. Necessary orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of two months, from the date of production of a certified copy of this judgment. The original petition is disposed of as above. Sd/- **ANIL K.NARENDRAN JUDGE** jm/