Aboobackar Siddique Vs Abdul Razak — Writ and Judicial Review | Kerala HC (2025)

Aboobackar Siddique Vs Abdul Razak — Writ and Judicial Review | Kerala HC (2025)

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the trial Court's Ext.P8 order remitting the Commissioner's report and plan (in IA.No.660/2022 in O.S.No.382/2016) for collecting additional inputs, without setting them aside, is legally sustainable. +1 more

Court's answer

The Commissioner's report, sketch and plan form part of the evidence under Order 26 Rule 10(2) CPC; the trial Court did not set them aside, but invoked Order 26 Rule 10(3) CPC, under which the Court is empowered to conduct further enquiry if dissatisfied with the report and plan — i.e., the remittal for additional inputs was within the trial Court's powers.

Ratio / Principle

Having regard to the nature of the contentions raised by the parties, the impugned order is affected with no illegality or irregularity warranting interference under Article 227 of the Constitution of India; consequently the Original Petition stands dismissed.

Detailed headnote1 paragraphs

Original Petition (Civil) OP(C) No.2106 of 2022 before the High Court of Kerala (K. Babu, J.), challenging Ext.P8 order dated 23.09.2022 of the Munsiff's Court, Ottapalam in I.A.No.660/2022 in O.S.No.382/2016 (a suit for injunction simpliciter), whereby the trial Court remitted the Commissioner's report and plan for collecting additional inputs. Held: the report, sketch and plan submitted by the Commissioner form part of the evidence under Order 26 Rule 10(2) CPC; the trial Court did not set them aside but invoked Order 26 Rule 10(3) CPC, which empowers the Court to conduct further enquiry where it is dissatisfied with the report and plan — consistent with the Division Bench ruling in Laly Joseph @ Laly Sebastian v. K.U. Francis, [2023 (2) KLT 516], relied upon by this Court (which permits remitting the report for further inquiry or appointing a fresh commission without setting aside the earlier report). Finding no illegality or irregularity warranting interference under Article 227 of the Constitution of India, the High Court dismissed the Original Petition.

2025:KER:24107

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K. BABU

THURSDAY, THE 20TH DAY OF MARCH 2025 / 29TH PHALGUNA, 1946

OP(C) NO. 2106 OF 2022

AGAINST THE ORDER DATED 23.09.2022 IN OS NO.382 OF 2016

OF MUNSIFF COURT, OTTAPPALAM

PETITIONER:

ABOOBACKAR SIDDIQUE
AGED 59 YEARS, S/O ALLIKKOTTIL MUHAMMED @ KUNJUTTY,
CHUNANGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD.,
PIN - 679511

BY ADVS.
SABU GEORGE
P.B.KRISHNAN
P.B.SUBRAMANYAN
MANU VYASAN PETER

RESPONDENTS:

1ABDUL RAZAK
AGED 59 YEARS, S/O SAITHALAVI, ANAPPALLIYALIL,
CHUNANGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD.,
PIN - 679511

2 ABOOBACKAR

AGED 55 YEARS, KOORIYIL, POOLAKKUNDIL, ARIYOOR
THEKKUMURI DESOM, OTTAPPALAM AMSOM, OTTAPPALAM
TALUK, PALAKKAD., PIN - 678583

3RAYIN
AGED 52 YEARS, S/O NALAKATH FAKRUDDEEN,
MURUKKAMPATTAYIL, CHUNANGAD AMSOM DESOM, OTTAPPALAM
TALUK, PALAKKAD., PIN - 679511

OP(C) NO. 2106 OF 2022

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4KOORIYIL KASIM
AGED 52 YEARS, KOORIYIL, POOLAKKUNDIL, ARIYOOR
THEKKUMURI DESOM, OTTAPPALAM AMSOM, OTTAPPALAM
TALUK, PALAKKAD., PIN - 678583

BY ADVS.
T.MADHU
ABRAHAM BABU KALLIVAYALIL
C.R.SARADAMANI(S-891)
SHAHID AZEEZ(K/000630/2015)
RENJISH S. MENON(K/001486/2021)
RANJAN SURESH(K/891/2014)

THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

OP(C) NO. 2106 OF 2022

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K.BABU, J.

O.P (C) No.2106 of 2022

-------------------------------------------------------Dated this the 20^th day of March, 2025

J UDGMENT

The challenge in this Original Petition is to Ext.P8 order dated 23.09.2022 in IA.No.660/2022 in O.S.No.382/2016 on the file of the Munsiff’s Court, Ottapalam, whereby the trial Court remitted the commission report and plan for collecting additional inputs.

The defendants are the respondents. The plaintiff is the petitioner. The plaintiff instituted the Original Suit for injunction simpliciter. The defendants resisted the identity of the plaint schedule property. On the application of the plaintiff the Court issued a Commission to identify the property based on the title deed, possession, survey documents etc. The Commissioner filed Ext.P4 report, rough sketch and plan.

The plaintiff challenged the contents in the report. The plaintiff pleaded that the Commissioner identified only 2.5 cents whereas the plaint schedule property as per the

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title deed and the relevant documents is 10 cents. The defendants resisted the application contending that the property referred to in the plaint was found situated at a place which is 200 metres away from the residence of the plaintiff. According to the defendants, the plaintiff is in possession of only 2.5 cents of land. The trial Court held that the Commissioner could not properly identify the property as per the title deed, possession and boundaries.

What is discernible from the observation of the trial Court in the impugned order is that additional inputs are required to identify the plaint schedule property. The report sketch and plan submitted by the Commissioner have become part of the evidence under Order 26 Rule 10 (2) CPC. The trial Court has not set aside the report, plan and sketch. The trial Court only invoked the provisions of Order 26 Rule 10 (3) CPC, as per which the Court is empowered to conduct further enquiry, if the Court is dissatisfied with the report and plan.

The Division Bench of this Court in Laly Joseph @ Laly Sebastian v. K.U. Francis [2023 (2) KLT

516], held thus:-

“10. The present dilemma has arisen in the matters

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relating to the appointment of the Commissioner for local investigation. It is true that there is no specific mention about setting aside the report under Order XXVI R.10(3) of the Code, as it only refers to conduct further ‘enquiry’. There is no embargo, according to us, 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, so also to appoint a fresh commission without setting aside the earlier commission report. The Court can very well appreciate both reports and decide accordingly at the time of the trial.…………….”

Having regard to the nature of the contentions raised by the parties, this Court is of the view that the order impugned is affected with no illegality or irregularity warranting interference of this Court under Article 227 of the Constitution of India.

Therefore, the Original Petition stands dismissed.

Sd/-

K.BABU,

JUDGE

NM

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APPENDIX OF OP(C) 2106/2022

PETITIONER EXHIBITS

EXHIBIT-P1 A TRUE COPY OF THE PLAINT, DATED 01-11-2016, IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM

EXHIBIT-P2 A TRUE COPY OF THE WRITTEN STATEMENT, DATED 0202-2018, IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM

EXHIBIT-P3 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT, DATED 11-11-2021, IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM

EXHIBIT-P4 A TRUE COPY OF THE REPORT AND PLAN DATED 14-102020 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM

EXHIBIT-P5 A TRUE COPY OF THE ORDER, DATED 06-04-2022, IN I.A NO.2806 OF 2021 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM

EXHIBIT-P6 A TRUE COPY OF I.A NO.660 OF 2022 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM

EXHIBIT-P7 A TRUE COPY OF THE OBJECTION IN I.A NO.660 OF 2022 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM

EXHIBIT-P8 A TRUE COPY OF THE ORDER DATED 23-09-2022 IN I.A NO.660 OF 2022 IN O.S NO.382 OF 2016 ON THE FILE OF THE MUNSIFF’S COURT, OTTAPPALAM