IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21738 of 2009(O)
1. BEEVI KUNJU SULEKHA BEEVI,
... Petitioner
2. MOHAMMED KASIM ABDUL VAHAD,
Vs
1. SALMA BEEVI FATHIMA BEEVI,
... Respondent
For Petitioner :SRI.B.PREMNATH (E)
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.21738 OF 2009
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Dated this the 3rd day of August 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) To set aside Ext.P2 order passed in
I.A No.142/2009 in O.S No.35/2007 on the file of
the Munsiff Court, Attingal.
ii) Issue an order allowing I.A
No.142/2009 in O.S No.35/2007 on the file of the
Munsiff Court, Attingal and appoint a new Advocate
Commissioner.
W.P.(C).No.21738 OF 2009 Page numbers
iii) To grant such other reliefs as this
Hon’ble Court may deem just and fit in the
circumstances of the case.
2. Petitioners are the defendants in O.S
No.35/2007 on the file of the Munsiff Court,
Attingal. Suit is for declaration and for
injunction, and respondent is the plaintiff in the
suit. An advocate commissioner appointed by the
court initially conducted a local inspection and
filed a report. Later, on the application moved by
the plaintiff and defendants / petitioners, the
same commissioner visited the property and
determined the matters sought for by both sides and
filed a report. Pursuant thereto the respondent /
plaintiff moved an application alleging that the
interim injunction granted by the court had been
violated by the defendants and applied for the
appointment of a commissioner as to the
interference and obstruction caused over the
pathway, the subject matter involved in the suit in
W.P.(C).No.21738 OF 2009 Page numbers
respect of which the order of injunction was
passed. The court below allowed the commission
report and appointed the same commissioner to visit
and prepare a report. At that stage the defendants
alleging bias against the commissioner sought for
changing him by filing an application. The
application was objected to by the plaintiff. The
learned Munsiff after hearing both sides dismissed
the application vide Ext.P2 order. Propriety and
correctness of that order is challenged in the
petition invoking the supervisory jurisdiction
vested with this court under Article 227 of the
Constitution of India.
3. I heard the learned counsel for the
petitioner. Having regard to the submissions made
and taking note of the facts and circumstances
presented with reference to Ext.P2 order, I find no
notice to the respondent is necessary and hence it
is dispensed with. Perusing Ext.P2 order, I find
the learned Munsiff has taken note that no specific
W.P.(C).No.21738 OF 2009 Page numbers
allegation imputing bias or being partisan to the
plaintiff is levelled against the advocate
commissioner and also that the earlier report was
prepared and filed by him determining the points
raised by both the defendant as well as plaintiffs
without any objection. The learned Munsiff found
no merit in the allegations imputed against the
advocate commissioner and so much so, the
application moved for removal of the commissioner
was dismissed as without merit. After hearing the
counsel at length, I find no reason to interfere
with the order passed by the learned Munsiff. The
commission report after all is only a piece of
evidence in a case. Its evidentiary value can be
determined if objections are raised by any of the
parties to the suit only after examination of the
commissioner. So much so, ample opportunity will
be provided to the parties of the suit to raise
whatsoever their objections against the report
prepared by the commissioner. When there is no
material to substantiate the apprehension expressed
W.P.(C).No.21738 OF 2009 Page numbers
by the petitioner that commissioner is partisan and
the earlier two reports had been prepared by him in
the case, it is only fair and just that the report
to be prepared to determine whether there was any
violation of the order of injunction also be
determined by the same commissioner. I do not find
any impropriety or illegality in the order passed
by the learned Munsiff whereby right of the
petitioner to challenge the report already filed
and also the report, which is to be filed after the
visit by the commissioner is deferred to for
consideration at trial of the suit.
4. The writ petition is closed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv