IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1006 of 2009(T)
1. SANATHANA DHARMA VIDYALAYA BOARD OF
... Petitioner
Vs
1. V.K.SASINDRANATHA KURUP,
... Respondent
2. C.VINOD,
For Petitioner :SRI.B.S.KRISHNAN (SR.)
For Respondent :SRI.K.N.VENUGOPALA PANICKER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :18/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C).No.1006 of 2009
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Dated this the 18th day of March, 2009
JUDGMENT
The second defendant in O.S.No.439 of 2008, on the file of
the court of the Subordinate Judge, Alappuzha, challenges in this
Writ Petition the order dated 29th November 2008 in I.A.No.2302
of 2008 by which the court below appointed a Commissioner to
ascertain whether a press is functioning in the building in
question.
2. I.A.No.2302 of 2008 is an application for injunction
filed by the plaintiff. At the time of hearing of that application, it
was contended by the plaintiff that he should be permitted to
bring machinery, tools etc. for working the press in the building.
The defendant opposed that prayer and contended that no press
is functioning in the building. In view of the diametrically
opposite contentions raised by the parties, the court below
thought to elucidate the matter in controversy, it is necessary to
appoint a Commissioner, so as to get a report on the relevant
question. Accordingly, a Commissioner was appointed. That
order is under challenge in this Writ Petition. Sri.Anand, learned
WPC No.1006/2009 2
counsel appearing for the Writ Petitioner submitted that the
court below was not justified in appointing a Commissioner
without there being an application filed by the plaintiff. He also
submitted that a Commissioner was appointed earlier (Advocate
P.V.Thomas) and he has filed Ext.P4 report. The counsel
contends that without setting aside the Commissioner’s report
submitted by Advocate P.V.Thomas, another Commissioner
cannot be appointed. He relies on the decision reported in
Swami Premananda Bharathi vs. Swami Yogananda
Bharathi (1985 KLT 144) in support of the contention. That
was a case without setting aside the first Commissioner’s report
in a suit for framing a scheme for administration of the Trust,
another Commissioner was appointed in the appeal against the
judgment and decree. The Division Bench held that the
procedure adopted by the trial court was wrong. The dispute in
that case was relating to the accounts. A Commissioner was
appointed who filed a report. Later without setting aside that
report, another Commissioner was appointed. In the present
case, the facts and circumstances are not similar to the facts and
circumstances in 1985 KLT 144. In Sivaraman Vs. Narayanan
WPC No.1006/2009 3
(1986 KLT 578), it was held that the court has jurisdiction to
appoint the Commissioner to note things which he omitted to
note in the report already filed, even without setting aside that
report. That view was accepted by this Court in several later
decisions.
3. Here the Commissioner has filed a report. The report
would indicate that a press is being run in the building in
question. In the present application for injunction, the
petitioner/plaintiff sought the permission to bring some
machinery to the press. Opposing that prayer, the defendant
stated that there is no such press in the building. This is not a
case where the court is remitting the Commissioner’s report to
the same Commissioner dissatisfied with the report already filed.
There is no such prayer also. This is a situation where the
present position as regards the property in dispute is to be
ascertained since there is a dispute as to the status quo. For
that purpose, the court below thought that a Commissioner is to
be appointed. It is not based on any application filed by the
parties. A Commissioner was appointed by exercising the
jurisdiction vested in the court. The court has jurisdiction to
WPC No.1006/2009 4
appoint a Commissioner, if the court feels that for an effectual
and complete disposal of the matter before it, elucidation of
certain facts are necessary. The court below having exercised
the jurisdiction vested in it, I do not think that the order is liable
to be set aside.
4. Sri.Anand submitted that the court below should have
appointed the same Commissioner who inspected the property
earlier. The order does not show that a particular Commissioner
was appointed. However, it is made clear that the court below
shall appoint Advocate P.V.Thomas as the Commissioner. Both
parties would be entitled to file work memo before the
Commissioner. The Commissioner shall file the report
expeditiously.
The Writ Petition is disposed of as above.
K.T.SANKARAN,
JUDGE
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