IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28440 of 2009(O)
1. MONIKUTTY JOSE, W/O.JOSE,
... Petitioner
Vs
1. P.C.MATHEW, S/O.CHANDY,
... Respondent
For Petitioner :SRI.P.C.HARIDAS
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :27/10/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.28440 of 2009
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Dated: 27th October, 2009
JUDGMENT
The Writ Petition is filed seeking mainly the following reliefs:
1. To set aside/quash Ext.P8 to the extent of appointing a second
commissioner.
2. To direct the learned Munsiff, Pala to depute the commissioner who
prepared Ext.P2 report to inspect the site and ascertain the points
sought to be ascertained in Exts.P3 to P5.
2. Plaintiff in a suit for injunction is the petitioner. The dispute
involved mainly related to the right over a pathway. An application for
interim injunction moved by the plaintiff was granted by the court
below. An Advocate Commissioner, after conducting a local
inspection, had also filed a report and rough sketch. The
defendant/respondent filed two applications, both for determination
of certain points enumerated thereunder by an Advocate
Commissioner appointed by the court. Second application was filed
advancing a case that after the filing of the first application, there
was interference over the subject matter by the plaintiff. P3 and P4
are the copies of the applications so filed by the
W.P.C.No.28440/09 – 2 –
defendant/respondent. Filing objections to the applications of the
defendant, the petitioner/plaintiff also sought for determination of
additional points by an Advocate Commissioner. The court below,
after hearing the counsel on both sides, allowed the applications of
the defendants with direction to the Commissioner to ascertain the
matters sought for by the plaintiff also in his objections thereto. P8 is
the copy of that order. Propriety and correctness of P8 order is
challenged in the Writ Petition by the plaintiff invoking the
supervisory jurisdiction vested with this court under Article 227 of the
Constitution of India.
3. I heard the counsel on both sides. While allowing the
commission application of the defendant, a different commissioner
other than the one who conducted the local inspection earlier and
filed a report and plan was appointed is the grievance canvassed by
the learned counsel for the plaintiff to impeach P8 order. Since the
plaintiff had a case that after passing of the interim injunction, the
order was violated by the defendant, the very same Commissioner
who previously conducted local inspection should have been
appointed to determine the matters additionally sought for by both
sides, according to the learned counsel for the plaintiff. On the other
W.P.C.No.28440/09 – 3 –
hand, learned counsel for the respondent/defendant contended that
none of the parties can insist that the same Commissioner should be
deputed by the court for conducting local inspection and
determination of additional matters which are found necessary for fair
disposal of the suit. It is further submitted that the respondent is
interested only in determining the additional points sought for in his
application by an experienced Advocate Commissioner. At the time of
hearing, it is also brought to my notice the defendant has already
filed his written statement in the suit. Taking note of the points
determined by the previous Commissioner in his report and also
those sought for in the two applications of the defendant and the
points sought for in the objections to such applications by the
plaintiff, I find before an Advocate Commissioner conduct a fresh local
inspection, the court below has to raise the issues on the pleadings of
the parties so that another Commission, if need be, for determination
of the disputes could be avoided later. In case the identification of
the property is disputed in the written statement, needless to point
out, it may be necessary to measure out the property with the
assistance of a surveyor. None of the parties has hitherto made any
such request in the application regarding that point for determination
W.P.C.No.28440/09 – 4 –
by the Advocate Commissioner. Deputing the Commissioner one after
the other, before and after the casting of issues, if it can be avoided,
has necessarily to be examined. So much so, I direct the court below
to settle the issues in the suit, if written statement had already been
filed by the defendant as represented by his counsel, and then post
the case for preliminary steps for proceeding trial. In case, any
further request for determination of any of the points by the
Commissioner by any of the parties sought for after framing of the
issues, that also has to be examined and appropriate orders thereof
has to be passed by the court. P8 order appointing the Commissioner
need be given effect to only after completion of the steps as indicated
above. However, I make it clear that if any of the parties seek for
determination of any point by the Advocate Commissioner which has
already been allowed by the court, subject to the satisfaction of the
emergent need to do so, the court may pass appropriate orders for
determination of such points. It is also open to the court to examine
the question whether the Commissioner appointed previously has to
be deputed in the place of the Commissioner named in P8 order, I
make it clear I am not expressing any opinion that the previous
Commissioner has to be deputed whenever a second commission is
W.P.C.No.28440/09 – 5 –
ordered by the court. The court below is directed to pass appropriate
orders as to the appointment of the commission for determination of
the points canvassed by both parties, after settling the issues in the
suit, at any rate, within six weeks from the date of receipt/production
of a copy of this judgment. Subject to the above direction, the writ
petition is disposed.
srd S.S. SATHEESACHANDRAN, JUDGE