In OP(C) NO. 2705 OF 2019-KER HC- Advocate Commissioner’s opinion is only corroborative in nature: Kerala HC Justice C.S.Dias [17-06-2022]

Read Order: MYDHILI AND ORS v. SHEENA M 

LE Correspondent

Ernakulam, June 23,2022: While affirming that it is up to the parties to prove by cogent evidence on the matters regarding the issues involved in the suit, the Kerala High Court has clarified that the opinion expressed by an Advocate Commissioner is only corroborative in nature.

The Bench of Justice C.S.Dias was approached by the petitioners-plaintiffs in the a suit filed against the respondent, seeking a decree for a permanent perpetual prohibitory injunction to restrain the defendant from disturbing the peaceful enjoyment of the petitioners over plaint ‘B’ schedule pathway.

Pursuant to an application filed by the petitioners, an Advocate Commissioner was appointed, who filed his report. The said report was remitted back, and thereafter, second report was filed. Since second report was also incomplete, the petitioners filed a fresh application along with a work memo to remit the commission report. Even though an Advocate Commissioner inspected the property, Ext.P6 report was filed in 2018.in which the Advocate Commissioner had erroneously observed the age of the construction carried out between plaint ‘A’ and ‘B’ plaint schedule properties. 

Hence, the petitioners had filed the  application to remit  Ext.P6 commission report. The same was objected by the respondent and the court below, without considering earier report had dismissed the petitioner’s application. This petition was filed challenging that the lower Court’s order  was erroneous and wrong.

The Bench opined that hat the Advocate Commissioner had in her report mentioned about the age of the construction of the building as per her knowledge and assessment. That did not mean that the same was conclusive in nature, added the Bench.

Thus, asserting that the itwould be up to the petitioners to object to the commission report and cross examine the Advocate Commissioner on the above aspect, the Bench did not find any error in Lower Court’s order warranting interference by this Court in exercise of the jurisdiction under Article 227 of the Constitution of India.