IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8164 of 2009(O)
1. C.S.I.TRUST ASSOCIATION,REPRESENTED BY
... Petitioner
Vs
1. PRADEEP KENNATH, S/O.FREDERIC GARSHONE,
... Respondent
For Petitioner :SRI.V.B.RAMANUNNI MENON
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice K.M.JOSEPH
Dated :11/08/2010
O R D E R
K.M.JOSEPH , J.
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W.P.(C) .No.8164 of 2009-O
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Dated, this the 11th day of August, 2010
J U D G M E N T
Petitioner is the plaintiff in O.S.38 of 2005 before
the Sub Court, Ottappalam. The suit is one for recovery of
possession of suit properties and to cancel the compromise
decree in A.S.No.119 of 1971. The allegation is that it is
obtained by fraud. The identity of the property is disputed.
The plaintiff filed application to appoint a Commissioner. The
petitioner/plaintiff gave work memo to the Commissioner and
requested him to file the report ascertaining all facts
requested. According to the petitioner, the Commissioner
has not ascertained the vital details and filed the report. The
plaintiff filed counter to the report and filed I.A.No.331 of
2009 to set aside the commission report. It is stated that
without considering the application the matter was posted in
the list for trial on 4.3.2009. Petitioner filed Ext.P2
application to remove the suit from the list. But, the matter
is adjourned. The suit is still in the ready list. The complaint
of the petitioner is that the property is not properly identified
and the Court should have considered I.A.No.No.331 of 2009
WPC 8164/2009 -2-
on its merits and the decision to proceed with the trial without
taking a decision in I.A.No.331/2009 will cause injury to the
petitioner.
3. I heard the learned counsel for the petitioner
and learned counsel for the respondent. I notice that a
learned Single Judge of this Court has already stayed further
proceedings. It is also ordered that the stay order will not be
a bar for considering the application for setting aside the
commission report or any other interlocutory application. I
would think that in the interest of justice the Court ought to
have taken a decision in I.A.No.331 of 2009 before entering
upon the trial of the suit. Accordingly, I dispose of the writ
petition by directing the Sub Court, Ottappalam to take up
I.A.No.331 of 2009 and take a decision thereon before the suit
is taken up for trial.
(K.M.JOSEPH)
JUDGE.
MS