IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6501 of 2009(O)
1. K.G.KRISHNAKUMAR, S/O.GOPINATHAN NAIR,
... Petitioner
Vs
1. JOHN, S/O.OUSEPH, AGED ABOUT 76
... Respondent
2. BABY, S/O.JOHN, AGED 48, DO. HOUSE,
3. JOSE, S/O.JOHN, AGED 53 DO. HOUSE,
4. JOSEPH, S/O.OUSEPH, MEMANA HOUSE,
For Petitioner :SRI.T.J.MICHAEL
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :04/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NO. 6501 OF 2009 O
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Dated this the 4th March, 2009
JUDGMENT
This Writ Petition reveals a classic example of an attempt
made by the first respondent to overreach the orders passed by this
court in W.P.(C) No.5045 of 2009.
2. The writ petitioner filed O.S.No.320 of 2008, on the file of
the Court of the Munsiff of Thodupuzha for declaration of easement
and for consequential injunction. In that case, an Advocate
Commissioner was appointed to inspect the plaint schedule
properties. Advocate Smt.Binumol Joseph was appointed as the
Commissioner. She filed a report and sketch. An order of
temporary injunction was also granted against the defendants in
O.S.No.320 of 2008. The writ petitioner (plaintiff in O.S.No.320 of
2008) alleged that the defendants violated the order of interim
injunction. He filed an application under Rule 2A of Order XXXIX of
the Code of Civil Procedure, which is pending. The petitioner
applied for appointment of a Commissioner to note the acts which
W.P.(C) NO.6501 OF 2009
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were allegedly done by the defendants in the suit in violation of the
order of interim injunction. There was no serious objection to the
appointment of a Commissioner. But, the defendants in O.S.No.320
of 2008 submitted that they have objection in appointing Advocate
Smt.Binumol Joseph as the Commissioner. The court below, by the
order dated 21.1.2009, allowed the application filed by the plaintiff
and appointed Advocate Sri.P.V.George as the Commissioner. That
order was challenged by the petitioner/plaintiff in W.P.(C) No.5045 of
2009. That Writ Petition was filed on 13.2.2009. Notice was ordered
by special messenger. Counsel appeared for the respondents
therein. W.P.(C) No.5045 of 2009 was disposed of on 19.2.2009. In
modification of the order passed by the court below, Advocate
Sri.P.V.George and Advocate Smt.Binumol Joseph were appointed
as joint Commissioners. That judgment was passed in the presence
of the counsel for the respondents therein.
3. After W.P.(C) No.5045 of 2009 was disposed of, it would
appear that the first respondent therein and his sons filed O.S.No.50
of 2009 before the Munsiff’s Court, Thodupuzha. It is submitted by
the learned counsel for the respondents that the suit was filed on
20.2.2009. The dispute involved in O.S.No.320 of 2008 and
W.P.(C) NO.6501 OF 2009
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O.S.No.50 of 2009 appears to be substantially the same. An
application for appointment of a Commissioner was filed by the
plaintiffs in O.S.No.50 of 2009. The court below appointed Advocate
Sri.P.V.George as the Commissioner by the order dated 20.2.2009.
4. The grievance of the petitioner is that knowing fully well that
in O.S.No.320 of 2008 Advocate P.V.George and Advocate Binumol
Joseph were appointed as joint Commissioners, the respondents
herein filed O.S.No.50 of 2009 and got an order appointing a
Commissioner (Advocate Sri.P.V.George) for the purpose of
overreaching the orders passed by this Court. This allegation is
disputed by the respondents. Any how, it is a matter for
consideration by the court below at the appropriate stage.
5. The relief prayed for in the Writ Petition is to set aside the
order passed by the court below in I.A.No.179 of 2009 in O.S.No.50
of 2009, appointing Advocate P.V.George as the Commissioner.
Learned counsel appearing for the respondents submitted that the
Commissioner inspected the property on 20.2.2009 and 21.2.2009
and the order was complied with by the Commissioner. Counsel for
the respondents submitted that the Writ Petition has, therefore,
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become infructuous.
6. In view of the fact that the Commissioner has already
inspected the property, I do not think that it is proper at this stage to
pass any order in this Writ Petition interfering with the order
appointing the Commissioner. However, I hasten to add that the
conduct of the first respondent in trying to overreach the judgment in
W.P.(C) No.5045 of 2009 is far from satisfactory and is
reprehensible. The petitioner may work out his remedy before the
trial court.
The Writ Petition is, therefore, closed with the above
observations.
(K.T.SANKARAN)
Judge
ahz/