## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938**
**RP.No. 719 of 2016 ------------------**
## **OP(C) 1836/2016, DATED 29-07-2016 --------------**
## **REVIEW PETITIONER(S)/PETITIONER:**
## **-------------------------------**
**SETHU MADHAVAN, S/O VELAYUDHAN, KONIPADIKKAL HOUSE, KNDAZHI VILLAGE, DESOM, THALAPPALLY TALUK, THRISSUR DISTRICT.**
## **BY ADV. SRI.JOSHI N.THOMAS**
## **RESPONDENT(S)/RESPONDENTS:**
**--------------------------**
**1. SUNDARAN, S/O AYYAPPAN,KONIPADIKKAL HOUSE, KONDAZHI VILLAGE DESOM, THALAPPALLY TALUK, THRISSUR DISTRICT.**
**2. NIRMALA,**
**W/O SUNDARAN, KONIPADIKKAL HOUSE, KONDAZHI VILLAGE DESOM, THALAPPALLY TALUK, THRISSUR DISTRICT.**
**3. AJIMOL,**
**D/O. SUNDARAN, KONIPADIKKAL HOUSE, KONDAZHI VILLAGE DESOM, THALAPPALLY TALUK, THRISSUR DISTRCIT.**
**4. BIJU, KONIPADIKKAL HOUSE,KONDAZHI VILLAGE DESOM, THALAPPALLY TALUK, THRISSUR DISTRICT.**
**THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**PJ**
**RP.No. 719 of 2016**
**------------------**
## **APPENDIX**
## **PETITIONER(S)' ANNEAXURE**
**-----------------------**
**ANNEAXURE A1: COPY OF THE DEPOSITION DATED 22/7/15 OF THE ADVOCATE COMMISSIONER BEFORE THE COURT BELOW.**
**RESPONDENT(S)' ANNEAXURE -----------------------**
**NIL.**
**/ TRUE COPY /**
**P.S. TO JUDGE**
**PJ**
## **K.RAMAKRISHNAN, J.**
----------------------------------------------
## **R.P. No.719 of 2016**
------------------------------------------------- _Dated this the 26[th ] day of August, 2016_
## **ORDER**
The petitioner in O.P.(C)No.1836/2016 has filed this petition for review under Section 114, Order 47 and Rule 1 of Code of Civil Procedure to review the judgment passed by this court dated 29.07.2016.
2. It is alleged in the petition that this court has not considered the relevant aspects of the apprehension of the petitioner, if the same commissioner is deputed, he will not get justice from that commissioner while dismissing the application. Further the deposition of the commissioner also will go to show that he had not even attempted to discharge his duties as vested in him and as such it requires review of the judgment passed and a detailed hearing is required. Hence this petition.
3. Heard Sri.Joshi N.Thomas, counsel appearing for the revision petitioner.
4. The counsel for the petitioner submitted that the commissioner has not made any attempt to measure the property in a particular survey number, which according to the petitioner is the property belonging to the review petitioner and over which the defendant is now claiming right. He had also submitted that, the court
_**R.P. No.719 of 2016**_
2
feels that the commissioner's report is not helpful to decide the issues, even the appellate court has got power to set aside the commissioner's report and call for a fresh report. He had relied on the decisions reported in _**S. Nagaraj and Others v. State of Karnataka and Another**_ (1993 Supp (4) (SC) 595) and _**State v. Kodakkat Pocker and others**_ (1987(1) KLT 714) in supporting his case.
5. The original petition was filed under Article 227 of the Constitution of India, challenging the order of the court below declining to set aside the commissioner's report, but remitting the commissioner's report to the same commissioner. The allegation in the petition was that, the commissioner has not measured the property as directed or requested by the petitioner and even when he was examined, he had admitted that he could not locate the property and that was the reason why the property could not be shown in the particular survey number in respect of which he wanted the measurement to be done. The court below after consideration of the evidence and also the submissions of both parties came to the conclusion that there is no necessity to set aside the commissioner's report, but remitting the commissioner's report will be sufficient and also directed the petitioner to furnish a fresh survey panel as the earlier surveyor who measured the property is no more. So this court
_**R.P. No.719 of 2016**_
3
on consideration of the reasons given by the court below found that there is no error apparent on the face of the record or no illegality has been committed by the court below in allowing the application in part by remitting the commissioner's report to the same commissioner, but appointing another surveyor for this purpose and the apprehension of the petitioner is without any basis and given opportunity to the parties to produce evidence before the commissioner for this purpose also and dismissed the application at the admission stage itself, that is now sought to be reviewed.
## 6. In the decision reported in _**Nagaraj v. State of Karnataka and Another**_ , the Supreme Court has observed as follows:
_“Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law._
_Rectification of an order stems from the fundamental principle_
_**R.P. No.719 of 2016**_
4
_that justice is above all. It is exercised to remove the error and not for disturbing finality. Apart from Order XL Rule 1 of the Supreme Court Rules, the Supreme Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus not precluded from recalling or reviewing its own order it if is satisfied that it is necessary to do so for sake of justice”._
7. There is no dispute regarding the above proposition when courts are passing orders. It is not only that the justice should be done, but it should appear to be done also. That principle is not only applicable to Administrative Law but also in discharging the judicial pronouncement also. In this case, the court below had considered all the aspects and thereafter came to the conclusion that there is no necessity to set aside the commissioner's report on the ground mentioned in the petition and found that remitting the commissioner's report to consider the objections raised by the petitioner in the petition will sufficient. Further what is stated by the commissioner while he was examined was only that, he was not able to locate the property and that was the reason why he had not mentioned that fact in the report. It is also seen that, no attempt was made on the part of the petitioner to help the commissioner also to locate the property on the basis on which he wanted to locate the property. Without getting materials, it will not be possible for the commissioner to do the same as well.
_**R.P. No.719 of 2016**_
5
Further, if the commissioner had not done on the basis of the records are available and if the court feels that these things are also to be considered by the commissioner, it is not necessary always that the commissioner's report will have to be set aside and a fresh commissioner will have to be appointed. The mistake committed by the commissioner can be pointed out and he can be directed to rectify that mistake. Even if the commissioner did not do it, thereafter the petitioner will be getting an opportunity to file objection to the commissioner's report and at that time court can consider those aspects as well.
8. There is no dispute regarding the proposition laid down and the power of the appellate court in setting aside the commissioner's report and calling for a fresh report as has been held in the decision reported in _**State v. Kodakat Pocker and others**_ (1987 (1) KLT 714). That was a case where a commissioner's report was taken out in Forest Tribunal proceedings and no objection was field by the parties and relying on the commissioner's report, certain orders have been passed by the Forest Tribunal, which when challenged in the appeal, the appellate court found that the commissioner's report is not helpful for the purpose of deciding the issue. It is in such circumstances, this court has held that, even if no objection has been filed by the parties,
_**R.P. No.719 of 2016**_
6
if the report of the commissioner is not helpful to adjudicate the dispute between the parties effectively, then courts hands are not tied and courts are not powerless even to set aside the commissioner's report and call for a fresh report even appointing a fresh commissioner for that purpose even at the appellate stage. That was not the case in hand.
9. It is too early for this court to come to a conclusion that the report of the commissioner is useless and it will not be helpful for adjudicating the matter as submitted by the counsel for the petitioner. Court below had considered all these aspects and found that on the basis of the materials available on record, there is not necessity to set aside the commissioner's report and remitting the commissioner's report and call for a report on the basis of the objections raised by the petitioner in the petition with the help of another surveyor as the original surveyor is no more and it cannot be said to be illegal or perverse so as to interfere by invoking the power under Article 227 of the Constitution of India. That was the reason why this court has dismissed the Original Petition at the admission stage itself as the right of the petitioner to get his grievances redressed by filing work memo to the commissioner and direct the commissioner to consider those aspects as well while filing the report is not taken away. Further it is
_**R.P. No.719 of 2016**_
7
too early for this court to come to a conclusion that the commissioner will not act in accordance with the directions given by the court below while remitting the commissioner's report so as to infer that injustice will be caused to the petitioner warranting setting aside the commissioner's report and appointing a fresh commissioner for that purpose as claimed. So there is no error apparent on the face of the record warranting this court to review or recall the judgment dated 29.7.2016 of this court. So the petition lacks merits and the same is hereby dismissed. The petitioner is at liberty to file work memo to the commissioner pointing out the things to be noted by the commissioner and produce all relevant records required for the commissioner and surveyor to carry out those work that has been mentioned in the work memo, so that the commissioner can locate the same and report about those things in the report.
Registry is directed to communicate this order to the court below at the earliest.
_Sd/-_ **(K. Ramakrishnan, Judge)**
//True Copy//
P.A. to Judge
ss
