Sabu Paul vs Luka on 16 August, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 24759 of 2007(V)


1. SABU PAUL, S/O PAULOSE,
                      ...  Petitioner

                        Vs



1. LUKA, S/O VARGHESE,
                       ...       Respondent

2. SAVITHRI ANTHARJANAM,

                For Petitioner  :SRI.T.KRISHNAN UNNI

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :16/08/2007

 O R D E R
                          M.N. KRISHNAN , J
              ==========================
                     W.P.(C) NO. 24759 OF 2007
              ==========================
               Dated this the 16th day of August, 2007.


                              JUDGMENT

This writ petition is filed challenging the order of the leaned

Munsiff, Thodupuzha in I.A. No. 823/2007 in O.S. No. 118/2007. The

said application was filed by the plaintiff in the suit. It was an

application requesting the court to depute the very same commissioner

who had inspected the property and had submitted the report and the

averment is to the effect that the defendants had violated the order of

status quo and it can be seen if inspection is done by the same

commissioner. The learned counsel for the revision

petitioner/defendants would submit before me that the earlier report of

the commissioner was not based on the actual facts and if the very

same commissioner inspects the property he would stick on to his

earlier report which will cause prejudice to the writ petitioner and

therefore in the interest of justice a new commissioner should be

appointed. A perusal of the order of the court below would show that

the court passed an order of status quo only on the basis of the

commissioner’s report and a person who was inspected the property

and reported about the position of the property on a particular day

W.P.(C) No. 24759/2007 : 2 :

certainly would be more competent to say about the changes if any

that had taken place. If the report of the commissioner at the first

instance itself is wrong or against facts, it is for the party who

challenges it to prove it. Since the court had followed the the earlier

commissioner’s report to pass order of status quo, the best thing is

only to depute the very same commissioner to note the changes if any

and that is what is precisely done by the court below. So I do not find

any illegality in the matter and therefore the writ petition lacks merits

and is dismissed. But I make it clear that, it will not in any way

deprive the present writ petitioner in challenging the correctness or

otherwise of the original report submitted by the commissioner.

The writ petition is disposed of accordingly.

M.N. KRISHNAN, JUDGE.

rv

W.P.(C) No. 24759/2007 : 3 :