The Court dismissed the application seeking remittal of a Commissioner's report, holding no such revision is permissible under Order 26 CPC, though a fresh commission may be sought.
Application to remit the Commissioner's report dismissed; liberty granted to defendant to apply for fresh commission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945
OP(C) NO. 1692 OF 2018
AGAINST THE ORDER DATED 24.05.2018 IN I.A.NO.2789/2017 IN OS
215/2014 OF PRINCIPAL MUNSIFF COURT, KANNUR
PETITIONER:
P. RAVEENDRAN, S/O. VANNARATH NARAYANAN NAIR,AGED
67,RESIDING AT KAKKARAKKAL HOUSE,P.O. AZHIKODE,AZHIKODE
SOUTH AMSOM DESOM,KANNUR DISTRICT 670 009.
BY ADV SMT.C.LEENA
RESPONDENTS:
1T. RAJALAKSHMI,
W/O. A.V.SREEDHARAN NAIR (LATE)AGED 73, HOUSEWIFE,
PERMANENTLY RESIDING AT'SHANTHI NIVAS, AZHIKODE SOUTH
AMSOM DESOM,P.O AZHIKODE, KANNUR 670 009 AND NOW
RESIDING AT 'ATHIRA', NALUMUKKU P.O, CHIRAKKAL,
CHIRAKKAL AMSOM DESOM, KANNUR TALUK, 670 011.
2T. MURALEEDHARAN
S/O. A.V SREEDHARAN NAIR (LATE), AGED 47,HOUSEWIFE,
PERMANENTLY RESIDING AT'SHANTHI NIVAS, AZHIKODE SOUTH
AMSOM DESOM,P.O AZHIKODE, KANNUR 670 009 AND NOW
RESIDING AT 'ATHIRA', NALUMUKKU P.O, CHIRAKKAL,
CHIRAKKAL AMSOM DESOM, KANNUR TALUK, 670 011.
BY ADVS.
SRI.PRAJIT RATNAKARAN
SRI.ABDUL RAOOF PALLIPATH
SRI.K.R.AVINASH (KUNNATH)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1692 OF 2018
2
JUDGMENT
The defendant came up aggrieved by the order
rejecting the prayer for remitting back a
Commissioner’s report which was issued at the trial
stage at the instance of the plaintiffs. The
defendant is at liberty to apply for a fresh
commission as there is no provision for remitting
back the Commissioner’s report, which was submitted
under Rule 8 to 10 of Order 26 CPC. The legal
position is very much settled by a Division Bench of
this court in Francis Assissi v. Sr.Breesiya [2017
(1) KLT 1041]. Hence, without prejudice to the right
of the defendant/petitioner to send out a fresh
commission, the present application will stand
dismissed.
Sd/-
P.SOMARAJAN JUDGE
msp
OP(C) NO. 1692 OF 2018
3
APPENDIX OF OP(C) 1692/2018
PETITIONER EXHIBITS
EXHIBIT P1TRUE COPY OF THE WRITTEN STATEMENT FILED BY
IN SUPPORT OF APPLICATION BEARING I.A NO.
2789/2017 FILED BY THE PETITIONER.
EXHIBIT P2TRUE COPY OF THE REPORT SUBMITTED BY ADVOCATE
COMMISSIONER
EXHIBIT P3TRUE COPY OF THE PLAN SUBMITTED BY ADVOCATE
COMMISSIONER
EXHIBIT P4TRUE COPY OF THE OBJECTION TO THE COMMISSION
REPORT FILED BY THE PETITIONER
EXHIBIT P5TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF
APPLICATION BEARING I.A NO 2789/2017 FILED BY
THE PETITIONER TO REMIT COMMISSIONER REPORT
AND PLAN.
EXHIBIT P6TRUE COPY OF THE ORDER DATED 24-05-2018 IN
I.A NO. 2789/2017 IN OS 215/2014 ON THE FILE
OF THE ADDITIONAL MUNSIFF COURT, KANNUR.
1 issue framed by the court
Whether a Commissioner's report can be remitted back under Order 26 Rules 8 to 10 of the CPC.
Colour shows how this judgement treated each authority
Francis Assissi v. Sr.BreesiyaReferred¶14
Francis Assissi v. Sr.Breesiya [2017 (1) KLT 1041]
1 provisions across 1 enactments
P. RAVEENDRAN
T. RAJALAKSHMI
MURALEEDHARAN
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.SOMARAJAN
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