Where any person is added as defendant under Order I Rule 10(5) CPC,, the proceedings shall be deemed to have begun against the supplemental party only from the date of service of summons on him. The commission report and plan prepared, before the petitioner, being brought in the party array, cannot legally bind her at all. This assertion was made by the Kerala High Court presided by J. T.V.ANILKUMAR in the case of SHARJA vs. SASIDHARAN & anr. [OP(C).No.1037 OF 2020].
The fourth defendant in O.S.No.12/2014 was aggrieved by order dated 16.03.2020, by which the learned Munsiff, Attingal, dismissed her application seeking appointment of Commissioner to survey and measure out the suit and counter claim properties in accordance with title deeds and revenue records. The plaintiffs opposed the application contending that there is already a commission report and plan in which the matters in dispute have already been ascertained and recorded, and hence a re-issue of commission was not in accordance with law. Accepting the objection raised by the plaintiffs, I.A.No.2/2020 filed by the petitioner was dismissed.
The honorable court observed, “It is a fact that the petitioner was impleaded as supplemental defendant subsequent to the submission of commission report and plan. Under Order I Rule 10(5) CPC, where any person is added as defendant, the proceedings shall be deemed to have begun against the supplemental party only from the date of service of summons on him. That means commission report and plan prepared, before the petitioner being brought in the party array, cannot legally bind her at all. This being the legal position, the finding of the court below that the petitioner cannot apply for issue of commission for ascertaining matters therein, cannot sustain under law. The impugned order is therefore liable to be interfered with. In the result, this original petition succeeds and the impugned order is set aside.” The court further held, “It is directed that the same Advocate Commissioner shall survey the properties and submit report and plan. This being a suit of the year 2014, the court below is directed to dispose of the suit within a period of six months from the date of receipt of certified copy of this judgment. It will be open to parties to take their objections if any to the report and plan newly submitted on facts and law, and the court below will decide the objections so raised in accordance with law.”
