IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12400 of 2007(A)
1. RAVIKUMAR ALIAS RAVINDRAN,
... Petitioner
Vs
1. KESUKUTTAN NAIR, AGED 72,
... Respondent
2. K.N. SREEKUMAR, AGED 38,
For Petitioner :SRI.N.SUKUMARAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :29/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
W.P.(C).NO.12400 OF 2007 ()
-----------------------------------
Dated this the 29th day of September, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following
relief:
i. to call for the records in
O.S.No.159/2005 on the file of the IInd
Additional Sub Court, Ernakulam and to
direct the learned Sub Judge to vacate
the stay of the suit and to issue a
commission as prayed for in Ext.P1
application setting aside Ext.P4 order
thereon by an appropriate writ, direction
or order.
2. Petitioner is the plaintiff in O.S.No.159 of 2005 on the
file of the Sub Court, Ernakulam. Suit is for a declaration that
a purchase certificate issued in favour of the 1st defendant is
vitiated by fraud, and a sale deed created by him in favour of
WPC.12400/07 2
the 2nd defendant, on the basis of the purchase certificate, is
null and void. The defendants, both of them, entering
appearance, filed written statement resisting the suit claim.
An application was moved by the plaintiff for appointment of a
Commission to measure out the suit property, and it was
objected to by the defendants, contending that in respect of
the very same property, another suit O.S.No.1413 of 1994,
was tried and disposed and the decision thereof is pending in
appeal as A.S.No.327 of 2005 on the file of the District Court,
Ernakulam. The learned Sub Judge, after hearing both sides,
found merit in the objection canvassed by the defendants, and
vide Ext.P4 order, held that in view of the previous report and
plan prepared in another suit as between the same parties in
respect of the very same subject matter, a fresh commission
cannot be allowed. However, the learned Sub Judge, after
taking the above view over the Commission application
proceeded further and passed an order that in view of the
challenges made by the plaintiff against the purchase
certificate imputed in the suit before the Appellate authority
instituted under the Land Reforms Act, and also the pendency
WPC.12400/07 3
of the appeal, A.S.No.327 of 2005, the trial of the suit has to
be stayed, and, accordingly, in Ext.P4 order, stay of the suit
was also ordered. Propriety and correctness of Ext.P4 order is
challenged in the writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
3. I heard the counsel on both sides. At the time of
hearing, the learned counsel appearing for the respondents
fairly submitted that the essential ingredients to satisfy the
stay of the suit as contemplated under Section 10 of the Code
of Civil Procedure are not made out in the present case, and
so much so, the order of the court below for staying the trial of
the suit, for the reasons stated in Ext.P4 order, cannot be
sustained. I appreciate the stand taken by the learned counsel
for the respondents, as I find that without even affording an
opportunity to the plaintiff, while deciding on the merit of a
Commission application, the court has jumped to a conclusion
that the suit is liable to be stayed under Section 10 of the CPC,
for the reason that other proceedings are pending in respect
WPC.12400/07 4
of the very same subject matter before a court and also before
the Appellate Authority under the Land Reforms Act. Whether
the issues involved in the present case were directly and
substantially involved in the other proceeding was not
considered by the court while passing the order of stay of trial
of the suit. The order passed by the court below directing stay
of the suit, in the circumstances, is liable to be set aside, and
it is ordered accordingly. The reasonings of the court below
that in view of a previous commission report in a connected
suit as between the parties, the commission application moved
by the plaintiff in the present suit cannot be allowed as
expressed in Ext.P4 order, I find cannot be accepted as
correct. The Commission report collected in a suit after all is
only a piece of evidence. In the very same suit, a second
commission without deciding the merit of the former
commission report, if identical matters are sought for
determination again is impermissible, as covered by the
decision in Swami Premananda Bharathi v. Swami
Yogananda Bharathi (1985 KLT 144). But, in a different
suit, even assuming that in respect of the very same property
WPC.12400/07 5
as between the same parties, a Commissioner had collected a
report in a previous suit by itself will not debar one or other
party from applying for a commission to collect the details
required for the adjudication of the disputes or controversies
involved in that suit or proceeding. Of course, the evidentiary
value of the previous commission report can be canvassed in
trial, provided, it has been accepted in evidence in the other
suit. Even if it is not accepted by examining the
Commissioner, who prepared it, the report can be let in as a
piece of evidence in the subsequent case as well. But the
mere fact that in another suit, a commission had been taken
previously in respect of the very same property between the
parties so long as the decision in that suit would not constitute
a bar of the present suit under any law for the time being in
force, is not sufficient to hold that a fresh commission cannot
be allowed in the subsequent suit. Irrespective of the
question whether a commission report is collected in the
present suit, it is open to the defendants to canvas the
evidentiary value of the previous commission report in respect
of the very same property in a suit between the same parties,
WPC.12400/07 6
but, to dismiss a commission application on the ground that
another report had been collected in a previous suit, is not
proper and correct, so long as the trial of the present suit is
not barred in any way by the decision in the previous suit. So
much so, I direct the learned Sub Judge to consider the
commission application afresh in the light of the observations
made above, and in accordance with law and dispose the
application on its merit. Writ petition is disposed as indicated
above.
S.S.SATHEESACHANDRAN
JUDGE
prp