IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 10718 of 2008(A) -------------------------- OS.60/2007 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: ------------ NADARSHAH K.H., S/O.HASSAINAR, KIZHAKKEKARA HOUSE, VATTEKKUNNAM, EDAPALLY NORTH, COCHIN - 24. BY ADV. SRI.DINESH R.SHENOY SRI.ROY MATHEW RESPONDENT: ------------- ASHRAF K.H., S/O.HASSAINAR, KIZHAKKEKARA HOUSE, VATTEKKUNNAM, EDAPPALLY NORTH, COCHIN - 24. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 10718 OF 2008 --------------------- Dated this the 28th day of March, 2008 JUDGMENT This writ petition is filed challenging the orders passed by the Subordinate Judge, Ernakulam, in IA Nos.1072/08 & 1073/08 in OS 60/07. 2. IA 1073/08 is filed to set aside the Commissioner's report filed by way of an interim report and the other application to restrain the Commissioner and Surveyor from proceeding with the work, until a decision is taken in IA 1073/08. What the court below has directed is to keep the application for setting aside the interim report pending and permitting the Commissioner and Surveyor to proceed with the work. I am informed that there are personal allegations levelled against the Commissioner, which may or may not be true. But when an application is filed to set aside the interim report of a Commissioner on the basis of personal allegations, it is desirable to hear that matter and dispose it of before permitting the Commissioner to continue the work. In other words, the hostility, which is there between the writ petitioner herein and the WPC NO 10718/08 2 Commissioner, may continue even when the Commissioner visits the property again for doing the work. Not only that, when an application is filed for setting aside Commissioner's report and that too attacking the Commissioner, it is always desirable that the court arrives at a decision as preliminary point before further proceeding with the matter. The whole thing depends upon the result of that finding. In case the court finds that the Commissioner has prejudice or bias, naturally the court has to set aside that report . 3. Here the court have decided to keep the application to set aside Commissioner's report pending and allowed the Commissioner to proceed with the work. Learned counsel for the respondent would strongly contend before me that if such a decision is taken then there will not be any end to the plight of the clients for the reason one party or the other can attribute allegations on the Commissioner. These are all which normally did occur in litigations. But when there is an apprehensive mind, first of all that has to be decided and then only the court can proceed further. 4. Therefore, I set aside the orders passed by the court below and direct the learned Subordinate Judge, Ernakulam to consider IA 1073/08 in OS 60/07 first after permitting both sides to WPC NO 10718/08 3 file their counter statements and objections and then dispose it of in accordance with law. Thereafter the court below shall give further direction to the Commissioner depending upon the result of IA Nos.1073/08. The court shall try to dispose of this IA within one month from the date of reopening of the court after the summer holidays. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 10718/08 4 WPC NO 10718/08 5