IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 3074 of 2005(N)
1. SMT.USHA MENON, W/O. ADITHYAN
... Petitioner
2. SRI. ADITHYAN, C1, SARANYA APARTMENTS
Vs
1. KAMALA PRABHAKARAN, W/O. K. PRABHAKARAN
... Respondent
2. SUNIL KUMAR, S/O. GOPALAKRISHNA MENON,
For Petitioner :SRI.ASP.KURUP
For Respondent :SMT.T.D.RAJALAKSHMI
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :13/08/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 3074 OF 2005
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Dated this the 13th day of August, 2007
JUDGMENT
In a suit filed against the builders, by the owners of plots upon
which flats have been constructed, the defendant builders filed an
application for appointment of a commission and the learned
Subordinate Judge under Ext.P4, dismissed that application.
2. Heard Sri.Sajith P.Kurup, learned counsel for the petitioner and
Sri.E.R.Venkateswaran, learned counsel for the respondents. It is not
seriously disputed that the identity of the flats claimed by the
respondents i.e., whether they are put up on land belonging to the first
petitioner-Kamala Prabhakaran or to her sister-Remani will be an issue
relevant for adjudication in the suit. The learned Subordinate Judge
also does not say that a report as sought for in the commission
application, Ext.P2, is irrelevant. According the learned Sub Judge,
though identification of the apartments agreed to be given to the plaintiff
may be necessary, the same can be done even without appointing a
commissioner. The learned Subordinate Judge states that the plan in
respect of the apartments, if produced, will be very helpful for identifying
the respective portions of the flats constructed in the property of the
plaintiff Kamala and her sister Remani. The learned Judge also
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indicates that the agreement for sale and basic title deed will also help
for locating the property of the plaintiff and her sister. Therefore the
learned judge concludes that since the properties can be identified from
the above referred documents, the commissioner’s report as sought for
is unnecessary.
I cannot agree with the learned Subordinate Judge. Though,
perhaps, it may be possible to identify the land upon which the flats
have been constructed with reference to the basic title deed and the
documents mentioned in the order including the plan(provided the plan
is an accurate one), the ideal method for resolving the controversy, in
my opinion, will be to depute a commissioner and get a report as
sought for in Ext.P2 application. Of course, Sri.E.R.Vekateswaran,
learned counsel for the respondents submitted that since the entire land
has been built up, it is not practicably possible to the have a
measurement and identification. I am of the view that the said aspect is
to be reported by the advocate commissioner after his first visit.
Therefore, I set aside the impugned order and allow Ext.P2 IA. The
court below will appoint an advocate of its own choice fixing suitable
remuneration. If the advocate commissioner after his first visit files an
interim report stating that a measurement as sought for is not practical,
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it is open to the court below to pass appropriate orders based on that
interim report.
PIUS C. KURIAKOSE, JUDGE
btt
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