IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31453 of 2008(T)
1. PRESTIGE EDUCATIONAL TRUST
... Petitioner
Vs
1. P.A.HAMZA AND OTHERS
... Respondent
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.CIBI THOMAS
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/10/2008
O R D E R
THOMAS P. JOSEPH, J.
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W.P(c) No. 31453 of 2008
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Dated this the 30th day of October, 2008
JUDGMENT
Third respondent in this writ petition is deleted from party
array as requested by the petitioner. Respondents 1 and 2 appeared
through counsel.
2. Heard both sides.
3. Petitioner is the first defendant in O.S. No.345 of 2008 of
the Sub Court, Thalassery. On the request of respondents 1 and 2,
Advocate Commissioner was appointed in that case to report on
matters requested in the application, including taking inventory of
movables, immovable properties and accounts etc. Advocate
Commissioner inspected the premises on 10/10/2008 and 11/10/2008
and thereafter, requested that police assistance be given to him for
further inspection. According to the learned counsel for petitioner,
though petitioner had appeared in that case, learned sub judge ordered
police assistance as per order in I.A No.3674 of 2008 without even
giving notice of the application to the petitioner. The Advocate
Commissioner gave memo to the petitioner intimating further
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inspection on 28/10/2008.
4. As per order dated 24/10/2008, this court after hearing the
learned counsel for petitioner had directed that the order granting
police assistance to the Advocate Commissioner will stand suspended
till 28/10/2008. Counsel for petitioner had then undertaken that the
petitioner will cooperate with the Advocate Commissioner and produce
whatever records are available for inspection of the Advocate
Commissioner and also comply with all other directions of the
Advocate Commissioner. Counsel for petitioner states that whatever
records available were produced for the inspection of the advocate
commissioner. His grievance is that the order giving police assistance
was without notice to the petitioner. Counsel pointed out that though
the second defendant (who is not a party in this proceeding) had filed
applications for review of the order appointing Advocate
Commissioner and to recall the order for police assistance, learned Sub
Judge closed the application seeking recall of the order for police
assistance.
5. It is contended by the learned counsel for respondents 1
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and 2 that the inspection of the Advocate commissioner is not
completed. It is contended that the order of the learned Sub Judge
granting police assistance is still in force and what is closed is an
application filed by the second defendant in the suit to recall that order.
6. In the facts and circumstances and on hearing the counsel
on both sides, I am of the view that it is not necessary to keep this writ
petition pending since the application to review the order appointing
Advocate Commissioner is pending consideration before the learned
Sub Judge. So far as the complaint of the petitioner that police
assistance was ordered without notice to him is concerned, it will be
open to any of the parties aggrieved in that regard to seek review of the
order granting police assistance, if they are otherwise entitled to that
course, and if any such request is made, learned Sub Judge will
consider that request on its merit.
7. It is made clear that the observations contained in the
interim order passed by this court on 24/10/2008 will be confined to
the disposal of the request for interim relief in this petition. Learned
Sub Judge shall dispose of the application pending or moved before
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him untrammeled by any of the observations contained in the interim
order or in this judgment. It will be open to the petitioner to raise
whatever contentions he has raised in this writ petition before the
learned Sub Judge if the petitioner is otherwise entitle to that course.
With the above observations, the writ petition is closed.
THOMAS P. JOSEPH, JUDGE
scm