MAHAMOOD Vs. ALI HAJEE

JUDGEMENT

(1.) The plaintiffs filed O.S. 258 of 1997 before the Munsiff's Court, Kannur, for a decree of mandatory injunction directing the defendants to demolish the unauthorised construction made in the plaint 'B' schedule property to the extent of encroachment made into the drops space of plaint 'A' schedule and to demolish other construction made in the 'B' schedule without the approved plan and also for a prohibitory injunction restraining the defendants from making any further constructions in the plaint B schedule. The plaint A schedule property belonged to the plaintiffs tarwad and the B schedule belonging to the defendants was situated just on the northern side of the plaint A schedule and the plaintiffs were having access to the northern road through the plaint B schedule. The defendants made constructions causing obstructions to the plaintiffs' right of way through the plaint B schedule property without obtaining permission from the Kannur Municipality and in violation of the Building Rules. The defendants in their written statement contended that they had not made any obstruction to the right of way of the plaintiffs through the plaint B schedule property and no constructions were made in violation of the Building Rules. In view of the rival contentions, the plaintiffs took out a commission to ascertain the lie of the property and the nature of the constructions made by the defendants and also the obstruction caused to the right of way. Dissatisfied with the commission report, the plaintiffs filed I. A. 4936/1998 for remitting the commission report to the Commissioner on the ground that the Commission Report was not sufficient to disclose the materials for resolving the dispute between the parties. The learned Munsiff dismissed I.A. 4936/1998. Aggrieved by the above Order, the 2nd plaintiff filed the present revision petition for setting aside the order passed by the learned Munsiff in IA. 4936/1998 in O.S. 258/1997.

(2.) Whether a revision under S.115 of the Code of Civil Procedure (for short the C.P.C.) will lie against the order rejecting the petition to remit the commission report for consideration of the Commissioner had been covered by a decision of a Division Bench of this Court in Kanaran Nair v. Madhavan Nair ( 1996 (1) KLT 162 ). The learned Single Judge who heard the petition referred the matter to Division Bench for reconsideration of the above decision as per the following order:

(3.) The learned counsel for the revision petitioner was heard. The learned counsel for the revision petitioner argued that the Commissioner had not adverted to in the Commission Report the real facts necessary for the proper adjudication of the issues involved in the suit and it did not contain particulars relating to the bone of contentions raised by the parties, but disclosed only the bare idea of the nature and lie of the plaint schedule properties. Dissatisfied by the report of the Commissioner, the petitioner filed I.A. 4936/98 for remitting the Commission Report to the Commissioner and it was dismissed. It was argued that by the dismissal of I.A. 4936/98, the plaintiffs were denied of the opportunity or a right to let in proper evidence and the plaintiff's case could be established only through a Commission Report and hence the dismissal of I.A. 4936/98 would amount to dismissal of the suit itself. Hence such an order disallowing the prayer for remitting the Commission Report in an interlocutory application would also come within the expression "case which has been decided" under S.115 C.P.C. and would occasion failure of justice, and thus a revision under S.115 C.P.C. is fully maintainable.