IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No. 735 of 2009(K) ----------------------------------------- OS.396/2004 of MUNSIFF COURT, PUNALUR .................... PETITIONER: B.SREENI, AGED 38 YEARS, S/O.BALAKRISHNA PILLAI M.R, NEDUTHERY, "RAM" NIVAS, THALAVOOR VILLAGE, PATHANAPURAM TALUK POWER OF ATTORNEY HOLDER OF HIS FATHER M.R.BALAKRISHNA PILLAI, AGED 74 YEARS, S/O.RAMAN PILLAI, NEDUTHERY,"RAM" NIVAS, THALAVOOR VILLAGE. BY ADV. SRI.AJAYA KUMAR. G RESPONDENTS: 1. BINUKUMAR, AGED 36 YEARS S/O. S.K.NAIR, PUNTHALAMTHUNDIL VEEDU NEDUTHERI MURI, THALAVOOR VILLAGE, PATHANAPURAM TALUK. 2. S.K.NAIR, DO. DO. 3. AJAYAN, S/O. CHANDRAN PILLAI BINDHU BHAVAN, NETTIYODE COLONY THALAVOOR VILLAGE, PATHANAPURAM TALUK. 4. GOPI, AGED 32 YEARS, AJITH BHAVAN S/O. S.K.NAIR, NEDUTHERI, PUNTHALAMTHUNDIL VEEDU, THALAVOOR VILLAGE, PATHANAPURAM TALUK. 5. OMANAKUTTAN, AGED 32 YEARS S/O.MADHAVAN, KARIMPATTA VADAKKETHIL VEEDU, NEDUTHERI, DO. DO. ADV. SRI.SYAM J SAM FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.735 of 2009 K -------------------------- JUDGMENT This writ petition has been filed by the plaintiff in O.S.No.396/04 on the file of the Munsiff's Court, Punalur assailing Exhibits P4 and P6 orders passed by the court below. Exhibit P4 is an order passed on I.A.No.2118/07 dismissing the application for the reason that notice could not be issued as no steps were taken. The petitioner/ plaintiff filed I.A.No.2207/08 to review Exhibit P4 order and the said application was dismissed even without calling for objections assigning the reason that the matter is already listed for trial. 2. Respondents 1 and 2 are served and they have entered appearance through counsel. Notice to respondents 3 to 5 are returned unserved with the endorsement 'refused'. Hence, service to them is accepted and declared as sufficient. WPC 735/09 2 3. It is submitted by counsel on both sides that I.A.No.2118/07 (Exhibit P3) is an application filed by the petitioner/plaintiff for issuance of an Advocate Commissioner with the assistance of a Surveyor to submit a report and plan on the matters asked for; that commission bata of Rs.1,250/- and Surveyor bata of Rs.450/- were deposited on 19.8.2008 as ordered by the court below; that from the panel of Surveyors supplied, the court below appointed Surveyor Manoharan to assist the Advocate Commissioner one Mahesh, but that there was no Advocate by name Mahesh practising at Punalur Bar and hence, the parties could not take the Advocate Commissioner for inspection assisted by the Surveyor and that it was thereafter that as per Exhibit P4 order the court below dismissed the commission application. Exhibit P4 order is as follows: “Notice not issued as no steps taken. Hence petition stands dismissed.” WPC 735/09 3 It is not known what the learned Munsiff meant by when he says that “notice not issued as steps not taken”. From the order, it cannot be made out as to what he meant and such an order cannot be a proper judicial order. If Bata is deposited and Commissioner is appointed by the court below, it is for the court below to issue order to the Commissioner so appointed. Petitioner filed Exhibit P5 application (I.A.No.2207/08) to review the aforesaid order passed on I.A.No.2118/07 stating therein that there is no Advocate by name Mahesh practising at Punalur Bar and hence, the petitioner/plaintiff could not take steps to him. Even without considering the review petition on merits, the learned Munsiff passed Exhibit P6 order dismissing I.A.No.2207/08, which is as follows: “Since the order of dismissing IA.2118/07 was due to the reason of not taking the steps. But the present petitioner does not have a case that he had taken steps as on the date of the order dismissing WPC 735/09 4 IA.2118/07. Hence the petition is dismissed without calling for objection as the matter is already listed for trial.” 4. Both Exhibits P4 and P6 orders are lacking in clarity and cannot be categorised as judicial orders. Further, in the light of the submissions made by counsel on both sides, I cannot, but, hold that Exhibits P4 and P6 orders are incorrect, illegal and perverse and are liable to be set aside. 5. In the circumstances, I set aside both Exhibits P4 and P6 orders on the petitioner/ plaintiff paying an amount of Rs.1,000/- as cost to the counsel for the respondents/defendants and order the court below to issue a commission, as both sides agree that commission report and plan are required in the circumstances of the case. On payment of Rs.1,000/- as cost to the counsel for the respondents/defendants, the court below shall allow the commission application and appoint afresh WPC 735/09 5 an Advocate Commissioner, who is regularly appearing in court and not to one, whose name only appears in the Commissioner's list. Necessary assistance of Surveyor may also be afforded from the panel of Surveyors, if any available before the court. The writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel on both sides urgently for production before the court below forthwith to expedite the matter, as the suit is one of the year 2004. 2nd February, 2009 (K.P.Balachandran, Judge) tkv