Aggrieved by Ext.P6 order, the petitioners before the court below have come up with this original petition under Article 227 of the Constitution of India. 2. The petitioners were defendants in O.S.No.405/2006 which was a suit for recovery of possession on the strength of title and for mandatory and prohibitory injunctions. The grievance of the plaintiffs in the suit was that the defendants had encroached into a portion of their property. The defendants entered appearance and filed written statement. A Commissioner was also taken out and he has filed two reports and plans which were marked as Exts.C1, C1(a), C2 and C2(a).
3. It so happened that when the case was listed for trial, the defendants did not appear and they were set at ex parte. Later the ex parte decree was set aside and long thereafter that they had come to contest the matter and they filed I.A.No.2188/2012 in O.S.No.405/2006 seeking for remission of the Commissioner's report to the Commissioner. The court below, by the impugned order, dismissed that petition.
4. Learned counsel appearing for the petitioners- defendants contended that the petitioners had never got an opportunity to have their matters noted by the Commissioner and they have been precluded from adducing evidence in that regard. Further grievance is that it was necessary to remit the Commissioner's report and the finding of the court below is almost conclusive as against the defendants and that will prejudice them at the time of trial. At any rate, it is pointed out by the learned counsel for the petitioners that they should have provided an opportunity to adduce evidence in the matter and the Commissioner's report should have been left open to be assailed later.
5. Learned counsel appearing for the respondents pointed out that it may not be quite proper to say that the petitioners were unaware of the proceedings since the Commissioner's report itself shows that notice was served on the petitioners. It is significant to notice that no objection has been filed to the Commissioner's report so far and it is without raising any objection that remission is sought for. Even assuming that there may be some observation at the interlocutory stage, that can only be for the purpose of the petition. It is pointed out that at the time of trial, the petitioners have a right in law to assail the Commissioner's report and if it is found that the Commissioner's report is not proper, appropriate steps can be taken in that regard.
6. After having heard the learned counsel for the petitioners and the learned counsel appearing for the respondents, it is felt that there is some substance in the contention raised by the learned counsel for the respondents. It is seen that no objection to the Commissioner's report is filed by the petitioners. It is also true that no work memo was submitted by the petitioners to the Commissioner for which they alone has to blame. Commissioner in his report had stated that notice was issued to the petitioners also. Whatever that be, in order to remit the Commissioner's report, it could have been shown that
there is lacuna or latches or infirmity in the present report for which objections ought to have been filed highlighting those aspects. It has not been done. At any rate, going by the decision in Kanaran Nair vs. Madhavan Nair (1996 (1) KLT 162), even assuming that there is some observation at the interlocutory stage, that will not bind the petitioners at the time of trial where they have got the liberty to assail the Commissioner's report and establish that the Commissioner's report is not acceptable. This right of the petitioners is not taken away by the present order.
Reserving liberty of the petitioners to assail the Commissioner's report at the time of trial, this petition is disposed of. It is made clear that if the court below is of the opinion that the Commissioner's report may not be acceptable, it may issue necessary orders at the request of either of the parties.
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P.BHAVADASAN JUDGE smp