Decided on December 16,1952

In Re: P. Moosa Kutty Appellant
STATE Respondents


Ramaswami, J. - (1.) THIS civil revision petition arises out of an order made by the learned District Munsif, Parappanangadi, in I. A. No. 1363 of 1952 in O. S. No. 245 of 1952 filed under Order 26, Rule 9, C. P. C.
(2.) THE facts are: P. Amarankutti of Kodinhi Amsom filed the suit for a declaration that he is entitled to a right of easement to pass through a specified portion of Moosakutty's 'paramba' to his house close by and that he has been in possession of the alleged pathway and that this Moosakutty has demolished a bund on the pathway and for an injunction and damages. The plaintiff filed along with his plaint an application on 8 -10 -1952 for the issue of a commission to make a report about the condition of the pathway and the damages alleged by him to the bund. This application for the appointment of a commissioner for local investigation under Order 26, Rule 9 , C. P. C., was ordered 'ex parte' and a Commissioner, an advocate of the Court, was appointed to prepare a plan of the plaintiff's as well the defendant's property and to make a report of what he saw concerning the alleged demolition of the bund. This order was passed on 9 -10 -1952 and the Commission was made returnable on 28 -10 -1952 and the commission warrant was ordered to issue on the plaintiff depositing Rs. 25. On 12 -10 -1952 at about 9 a.m. the Commissioner went to the spot and he enquired among others this defendant Moosakutty and then drew up a plan and submitted his report regarding the condition of the bund as called for. On receipt of this report final order was passed on 28 -10 -1952 "Commission issued returned executed. Petition closed." The defendant after appearing in Court obtained copies of the application by the plaintiff and the plan and report of the Commissioner. This plan and report are obviously very inconvenient from the point of view of this defendant.
(3.) THEREFORE he has come forward with this revision petition stating that if the plan and report filed by the Commissioner are used in evidence in the case, he would be greatly prejudiced as they are one -sided and that the order of the learned District Munsif appointing the Commissioner without notice to him and hearing him, is illegal and opposed to the provisions of Order 26, Rule 18, C. P. C. Therefore, he has filed this revision petition against that order which has been executed and what is really more important for him is to get a stay of the trial of the suit on that pretext, obviously to protract the proceedings and wear out the opposite side.;

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