MAROLI ACHUTHAN Vs. KUNHIPATHUMMA

JUDGEMENT

(1.) Defendant is the revision petitioner and the revision petition is directed against the order of the court below dismissing the petition filed by the defendant to set aside the commission report on the ground that the order issuing the commission and the investigation by the commission were without notice to him.

(2.) The suit filed on 25 5 1962 is for mandatory injunction to fill up certain pits alleged to have been dug in the plaint property. The plaintiff filed A. I. A. 1090 of 1962 on 1 6 1962 for the issue of a commission to prepare a plan of the property, to mark the pits in the property and to give an estimate of the expenses necessary to restore the property to its original condition. The application was granted by the learned Munsiff on 8 6 1962 without notice to the defendant. The commissioner visited the property and conducted the investigation on 13 6 1963, also without notice to the defendant and filed his report in court.

(3.) The contention raised by the learned counsel for the revision petitioner was that the report of the commissioner is inadmissible in evidence and cannot be acted upon in view of O.26, R.9, 10 and 18 of the Civil Procedure Code. O.26, R.9, 10 and 18 read as follows: