IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 WP(C).No. 22830 of 2010(O) -------------------------- IA NO.768/2009 IN OS.230/2004 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- PRASANNA KUMARI @ PRASANNA NAIR, W/O.LATE N.T.NAIR, AGED 65, RESIDING AT SREE PADMAM, VAZHUTHOOR, NEYYATTINKARA. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------- 1. UNNIKRISHNAN NAMBOOTHIRI, S/O.VELAYUDHAN NAMBOOTHIRI, HOUSE NO.82, KAILAS NAGAR, CHENKALLOOR, POOJAPPURA, THIRUVANANTHAPURAM, NOW RESIDING AT BHRAMAPURAM ILLOM, C.P.GOPALAPANICKER LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM. 2. SUJI MAHESWARI, W/O.UNNIKRISHNAN NAMBOOTHIRI, -DO-. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 &R 2 SRI.S.SUJIN FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.22830/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT DATED 7.4.2004 IN OS NO.230/2004 ON THE FILE OF SUB COURT, THIRUVANANTHAPURAM EXT.P2 TRUE COPY OF WRITTEN STATEMENT DATED 11.10.2004 IN OS NO.230/2004 ON THE FILE OF SUB COURT, THIRUVANANTHAPURAM EXT.P3 TRUE COPY OF APPLICAION DATED 28.1.2009 FILED BY PETITIONER IN OS NO.230/2004 ON THE FILE OF SUB COURT, THIRUVANANTHAPURAM EXT.P4 TRUE COPY OF COUNTER AFFIDAVIT DATED 9.2.2009FILED BY RESPONDENTS IN EXT.P3, APPLICATION EXT.P5 TRUE COPY OF ORDER DATED 15.6.2010 IN IA NO.768/2009 IN OS NO.230/2004 ON THE FILE OF SUB COURT, THIRUVANANTHAPURAM RESPONDENTS'S EXHIBITS: EXT.R1(a) TRUE COPY OF JUDGMENT IN WP(C) MO.25852/2005 DATED 15/11/2005 EXT.R1(b) TRUE COPY OF THE RECEIPTS BY STATE BANK OF TRAVANCORE TREASURY BENCH, THIRUVANANTHAPURAM DATED 3.12.2005 EXT.R1(c) TRUE COPY OF RECEIPTS BY STATE BANK OF TRAVANCORE TREASURY BENCH, THIRUVANANTHAPURAM DATED 23.12.2005 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22830 of 2010 -------------------------------------- Dated this the 10th day of December, 2010. JUDGMENT Ext.P5, order passed by the learned Additional Sub Judge-I, Thiruvananthapuram on I.A.No.768 of 2009 in O.S.No.230 of 2004 is under challenge at the instance of petitioner/plaintiff. Shorn off frills and embroideries, short facts necessary for disposal of the petition are: Petitioner sued for recovery of possession of the suit property on the strength of title claiming that respondents/defendants are trespassers in the suit property. Respondents claimed title and possession over the property as per two sale deeds allegedly executed by Krishna Pillai said to be the power of attorney holder of petitioner. Petitioner however said that no such power of attorney was created and documents of title relied on by respondents are fraudulent. In the course of suit petitioner filed application (Ext.P3) for appointment of an Advocate Commissioner to report on the existing structures in the suit property. That application was resisted by the respondents contending that there is a temple in the suit property which is being attended to by the public, the nature and extent of structures in the suit property has already been admitted by the respondents in their counter and in the circumstances there is no necessity to appoint an Advocate Commissioner as prayed for. Learned Sub Judge by Ext.P5, order WP(C) No.22830/2010 2 held that whatever constructions are in the suit property have been stated by the respondents in their counter statement and hence it is not necessary to depute an Advocate Commissioner as prayed for. The application was dismissed. Learned counsel submitted that unless nature and extent of the structures in the suit property are ascertained and reported, there is possibility of further constructions being made and unnecessary claims being made in respect of the constructions. Learned counsel for respondents submitted that in the light of the admission already made by respondents in the counter for application for injunction it is not necessary to depute an Advocate Commissioner. Learned counsel contends that if at all an Advocate Commissioner is deputed to visit the property it shall not in an way affect the public offering worship in the temple in the suit property. Learned counsel requested that Tuesdays, Thursdays and Sundays may be excluded if at all the Advocate Commissioner to be appointed. 2. Having heard both sides and going through Ext.P3, application and Ext.P5, order dismissing that application I am inclined think that by deputing the Advocate Commissioner no prejudice will be caused to the respondents notwithstanding that they have made certain admissions about the structures in the property. A report as to the existing structures would help to ascertain whether any further constructions have been made by the respondents in the suit property. In these circumstances I am inclined to allow Ext.P3, application. Resultantly this petition is allowed and Ext.P5, order is set aside. Ext.P3, application will stand allowed. Learned Sub Judge shall appoint a suitable person as Advocate Commissioner having regard to the fact that a temple is WP(C) No.22830/2010 3 functioning in the suit property. Learned Sub Judge shall also direct the Advocate Commissioner to conduct inspection on any day other than Tuesdays, Thursdays and Sundays and further that the inspection shall be between 11.30 a.m. and 4.30 p.m. Batta payable by the petitioner to the Advocate Commissioner shall be fixed by the learned Sub Judge. In case respondents want any matter to be ascertained and reported by the Advocate Commissioner, they can file work memo in the court below and the court below may issue appropriate direction regarding such work memo and having regard to the extent of work required to be done in respect of such work memo it will be open to the learned Sub Judge to issue appropriate direction for payment of batta by respondents as well. THOMAS P.JOSEPH, Judge. cks