IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 30550 of 2009(O) ----------------------------------------- AGAINST THE ORDER IN IA 6239/09 IN OS.304/2004 of I ADDL.SUB COURT, THRISSUR. .................... PETITIONER(S): ----------------------- 1. OMANA, W/O.LATE NADEKKAT PAVITHRAN, PARAYIL ANGADI, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. DHANYA PAVITHRAN, D/O.LATE NADEKKAT PAVITHRAN, PARAYIL ANGADI, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 3. DHANEESH PAVITHRAN, S/O.LATE NADEKKAT PAVITHRAN, PARAYIL ANGADI, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS.MR.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): -------------------------- 1. AMMINI, D/O.LATE NADEKKAT PAVITHRAN, PARAYIL ANGADI, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. KUNJAMMA, D/O.NADEKKAT KUPPA, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISUR DISTRICT. 3. AMMU, D/O.NADEKKAT KUPPA, KUNNAKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. W.P.(C) NO.30550/2009 4. SHYLA, D/O.NADEKKAT KUPPA, KUNNAKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 5. KARAPPAN, S/O.CHENOTHVEETTIL KUPPA, CHOONDAL POST, THRISSUR DISTRICT. 6. RAJAN, S/O.KARAPPAN, CHOONDAL POST, THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.30550 OF 2009 -------------------------- Dated this the 28th day of October 2009 ------------------------------------- JUDGMENT Petitioners are some of the defendants (2 to 4) in O.S No.304 of 2004 on the file of the Ist Additional Sub Court, Thrissur. Suit was filed by the respondents 1 to 4 along with their sister, the first plaintiff, who had passed away. Suit was one for partition and also for recovery of possession. Two items of properties, 'A' and 'B' schedule formed the subject matter of the suit. Partition was claimed over plaint 'A' schedule property and recovery of possession over plaint 'B' schedule property. Suit claims were resisted by the petitioners and other contesting defendants. After the entire evidence was taken and the case heard and posted for judgment, according to the petitioners, the court below passed an order W.P.(C).No.30550 OF 2009 Page numbers directing the plaintiffs to move an application for appointment of a commission to determine the identity of the property ' B' schedule which is sought to be recovered. Plaintiffs reluctantly moved an application stating that they were doing so since such a direction had been given by the court. Though objections were filed by the petitioners to that application, the court below allowed it vide Ext.P5 order on terms directing the plaintiffs to pay a sum of Rs.1,000/-(Rupees One thousand only) as cost to the defendants. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances W.P.(C).No.30550 OF 2009 Page numbers presented, I find no notice to the respondents is necessary and hence it is dispensed with. Plaintiffs are not interested in taking out commission despite direction issued by the court below is highlighted by the counsel to contend that the application moved by the petitioners for appointment of the commission should have been dismissed. Burden was on the plaintiffs to prove the identity of the property 'B' schedule which is sought to be recovered and when the plaintiffs were not prepared to identify the property despite the direction of the court, it was outside the province of the court to compel them to proceed for identifying the property by taking out a commission, according to the counsel. I do find some force in the submission made by the counsel, but, still having regard to the facts and circumstances involved in the case, I do not find any impropriety or illegality in Ext.P5 order W.P.(C).No.30550 OF 2009 Page numbers passed by the court. Courts as instrumentalities of justice are expected to deliver justice and not to dispose cases mechanically on the basis of technical objections. The commission application has been allowed by the court taking note of the injury suffered by the defendants by directing the plaintiffs to compensate them. In the given facts of the case, the court below was justified in directing the plaintiffs to take out a commission when a relief for recovery of possession of 'B' schedule apart from partition of plaint 'A' schedule was sought for in the suit. I do not find any reason to interfere with Ext.P5 order passed by the court below. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv