IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 12400 of 2007(A) -------------------------- OS.159/2005 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- RAVIKUMAR ALIAS RAVINDRAN, AGED 66, S/O.LATE AMMUKUTTY AMMA OF MULLAPPILLIL HOUSE, ADVOCATE, AMBILI NIVAS, EROOR, NADAMA VILLAGE, TRIPUNITHURA. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM RESPONDENT(S): --------------- 1. KESUKUTTAN NAIR, AGED 72, S/O.LATE MADHAVAN PILLAI, VALAVAKKAT HOUSE, ETTUMANOOR, KIZHAKKUMPURATHU KARA, ETTUMANOOR VILLAGE, ETTUMANOOR TALUK, KOTTAYAM DISTRICT. 2. K.N. SREEKUMAR, AGED 38, S/O.NARAYANAN NAIR, SAROVARAM, KANNAKARI P.O., KANNAKARI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV.SRI.PAUL.K.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.12400/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMISSION APPLICATION I.A.NO.4870/2006. EXT.P2: COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS IN I.A.NO.4870/2006. EXT.P3: COPYOF THE JUDGMENT DATED 20.10.2006 OF THE HONOURABLE HIGH COURT IN WPC.27669/2006. EXT.P4: COPY OF THE ORDER DATED 22.11.2007 ON EXT.P1 COMMISSION APPLICATION. /TRUE COPY/ P.A. TO JUDGE 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