IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 4457 of 2010(O) ------------------------- AS.171/2004 of PRL.SUB COURT, KOZHIKODE OS.442/1998 of ADDL.M.C.,KOZHIKODE-I .................... PETITIONER(S): --------------- PUTHIRAMPARAMBATH PREMAVALLY, AGED 55 YEARS, D/O. KARIKUTTY, KACHERI AMSOM DESOM, KOZHIKODE TALUK BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): --------------- 1. CHANDANA VEETIL VELAYUDHAN, S/O. VIJAYAN, KARULTHAZHAM, VENGERI AMSOM KARUVISSERY DESOM, KOZHIKODE TALUK 2. THANKAM, W/O. VELADYUDHAN, KARULTHAZHAM, VENGERI AMSOM KARUVISSERY DESOM, KOZHIKODE TALUK 3. BIJEESH, S/O. VELAYUDHAN KARULTHAZHAM, VENGERI AMSOM KARUVISSERY DESOM, KOZHIKODE TALUK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-2-2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C) No. 4457 of 2010 * * * * * * * * * * * * * * * * * * Dated: 10-02-2010 JUDGMENT The plaintiff in O.S. No. 442 of 1998 on the file of the Addl. Munsiff-I, Kozhikode is the Writ Petitioner. The said suit was one for mandatory and prohibitory injunction and also for damages for use and occupation. The plaintiff had taken out a commission before the trial Court and the Advocate Commissioner filed Exts. C1 and C1 (a) plan. The learned Munsiff, after trial, however dismissed the suit but allowed the counter claim in part. Aggrieved by the dismissal of the suit and the grant of counter claim in part the plaintiff has preferred an appeal before the District Court and the same was made over to the Sub Court as A.S. 171/04. Pending the appeal, the petitioner filed a fresh application for commission as I.A. 5314 of 2005 . The said application has been dismissed by the lower appellate court inter W.P. ( c) 4457 of 2010 -:2:- alia observing that the question as to whether a Commission has to be issued again can be considered only after examining the lower court judgment and records during the course of hearing. The lower appellate court was thus not inclined to entertain the petition at this stage. The said dismissal does not preclude the lower appellate court either suo moto or on an application from issuing a commission, in case proper disposal of the appeal warrants the same. This has been made clear in Ext.P3 order itself. Hence, without prejudice to the right of the petitioner to move for a commission if found necessary during the course of the hearing of the appeal, this Writ Petition is dismissed. I make it clear that the lower appellate court is also free to issue a fresh commission in case the existing evidence does not enable that court to dispose of the appeal satisfactorily. Sd/-V. RAMKUMAR, (JUDGE) W.P. ( c) 4457 of 2010 -:3:- ani.