IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18360 of 2009(O)
1. HABEEB MUHAMMED, S/O. HAMEED RAWTHER,
... Petitioner
Vs
1. THANKAMANI AMMA, W/O. LATE NARAYANAN
... Respondent
2. RAMESAN, S/O. LATE NARAYANAN NAIR,
3. VASANTHI, D/O. LATE NARAYANAN NAIR,
4. SUBAIR, S/O. SAINUDDIN,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.18360 of 2009 - O
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Dated this the 3rd day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
“i) To call for the records leading to Ext.P4 and
quash the same by issuing a writ of certiorari.
ii) To issue a writ of mandamus or any other
appropriate order or direction directing the Principal
Sub Court, North Paravur to allow Ext.P2 petition and
pass appropriate orders in it.”
2. Petitioner is the plaintiff in O.S.No.541/2006 on the
file of the Sub Court, North Paravur. Suit is one for specific
performance and the respondents are the defendants. The
petitioners moved an application for appointment of a
commission stating that the terms of the agreement of sale
provided for measuring of the property and so much so,
enforcement of the agreement depends upon the satisfaction of
that condition. Learned Sub Judge after hearing both sides,
expressing the view that in the nature of adjudication arising in
the suit, appointment of a commission for the purpose sought for
W.P.(C).No.18360 of 2009 – O
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by the plaintiff was not entertainable, and the application of the
plaintiff was dismissed. Ext.P4 is the copy of that order.
Impeaching the correctness and propriety of that order,
petitioner has filed this writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
3. Having regard to the question raising for consideration
with reference to the challenge raised against Ext.P4 order, I find
notice to the respondents is not necessary and it is dispensed
with. I heard the counsel for the petitioner.
4. It is submitted that taking out measurement of the
property is essential for passing a decree in terms of the
agreement of sale and that the view expressed by the court
below that if necessary it can be taken at the stage of execution
of the decree is incorrect. I cannot agree with the submission.
He has filed a suit for specific performance of the agreement of
sale as such and he is duty bound to show his readiness and
willingness to take the contract in terms stipulated under the
agreement. I do not find any impropriety or illegality in the view
W.P.(C).No.18360 of 2009 – O
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expressed by the court below that if need be the measurement of
the property can be taken after passing of the decree in its
execution. Execution as such may also be not necessary as the
decree requires only registration of the sale deed. While passing
the decree, grievance that the property has to be measured out
can be taken note of, and appropriate directions can be issued by
the court, provided the petitioner/plaintiff proves his entitlement
to the reliefs claimed in the suit.
Subject to the above observations, this writ petition is
closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-