C K VENKATARAM NAIDU Vs. C R VASANTHI

JUDGEMENT

(1.) The 1st defendant is the revision petitioner. The challenge is with regard to the order passed by the Principal Sub Judge, Kochi in I. A. No. 1069/96 in O. S. No. 185/88 directing issuance of a commission to report about "the dies, spares, scraps and other articles stored in the Coastal Engineering Company Palluruthy premises and also to approximate the quantity and value of the articles". The aforesaid items are situated in item 5 of the plaint schedule property. There were several partnership firms of which the plaintiffs and defendants in the suit were partners and the suit is now laid for partition, the contention of the defence is that the partible items have already been partitioned through the intervention of mediators as per an agreement dated 7-9-1985 and that under the agreement the aforesaid factory comes within the property allowed to the 1st defendant. The contention is that issuance of a commission in the circumstances will cause unnecessary delay in the disposal of the suit and also will cause nuisance to the 1st defendant, who is aged 72 years.

(2.) The issuance of commission is only a step in aid in the disposal of suit. The order directing issuance of a commission is only interlocutory in nature, in so far as the court can at the final stage of the suit, even do away with the report. The rights of the parties are not substantially affected by the collection of evidence, which may nor may not be ultimately accepted by the court.

(3.) The question whether an order declining to set aside a commission report is revisable came up for consideration of a Division Bench of this Court in Kanaran Nair v. Madhavan Nair ( 1996 (1) KLT 162 ). It was found therein that a commission report is subject to all the checks to which any other item of evidence is subject in law; that there is scope for raising contentions at all the subsequent stages for satisfying the court that the report of the commissioner cannot be relied on; that as such an order is only interlocutory in nature and nothing contained in it would trammel the Trial Court from taking a different view if otherwise satisfied on evidence at a subsequent state and that in this perspective the order is not revisable. The impugned order, if allowed to stand would not result in a failure of justice. Nor will it cause irreparable injury to the revision petitioner because only an inventory is being prepared. The principles laid down in Kanaran Nair Madhavan Nair (1996 (1) KLT 162) are squarely applicable to the present case. The revision is found to be not maintainable. Accordingly, it is dismissed.