IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 16962 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 1030/09 IN OS.71/2008 of SUB COURT, QUILANDY .................... PETITIONER(S): --------------- 1. T.K.VASUDEVAN NAIR S/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. 2. T.K.JANARDHANAN NAIR S/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. 3. T.K.RUGMINIDEVI D/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. 4. T.K.GIRIJA AMMA D/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. 5. T.K.SASIDHARAN NAIR S/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. 6. T.K.RAMADEVI AMMA D/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. 7. T.K.RADHAKRISHNAN NAIR S/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. 8. T.K.JAYALAKSHMI AMMA D/O.LATE GOPALAN NAIR, THEKKE MOKKATAVATH HOUSE THIRUVANGUR AMSOM KOYILANDY. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): WP(C) NO.16962/2010 2 RESPONDENTS: --------------- 1. T.VRIJI MOHAN, S/O.LATE T.BALAN,ARJUNA PUDUPPANAM AMSOM, VATAKARA, KOZHIKODE. 2. M/S. P.V.S. APARTMENTS YMCA ROAD, CALICUT, BY MANAGING PARTNER P.V.GANGADHARAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.16962 of 2010 -------------------------------------- Dated this the 2nd day of June, 2010. JUDGMENT Defendants in O.S.No.71 of 2008 of the court of learned Sub Judge, Koyilandy, a suit for specific performance of Ext.P1, agreement for sale challenge Ext.P7, order of learned Sub Judge appointing Advocate Commissioner to measure the property and submit report. According to the learned counsel for petitioners, this being a suit for specific performance identification of the property or ascertainment of its extent arises only on the execution side, if on the trial side the court found that Ext.P1, agreement is specifically enforceable. Hence the appointment of Advocate Commissioner is premature. It is contended by learned counsel that objection preferred to application for appointment of Advocate Commissioner was not taken into account by the learned Sub Judge. 2. It is seen that there was an earlier application for appointment of Commissioner which was dismissed by the learned Sub Judge and which respondents/plaintiffs challenged in this Court in W.P.(C) No.8066 of 2009. This Court vide judgment dated 16.06.2009 disposed of the Writ Petition giving opportunity to respondents to amend the plaint incorporating relief under Section 12 of the Specific Performance Act (for short, “the Act”) and to move appropriate application for issue of commission if such amendment is allowed. WP(C) No.16962/2010 2 Pursuant to that judgment respondents got the plaint amended incorporating relief under Section 12 of the Act. It is thereafter that they moved fresh application for appointment of Advocate Commission for identification of property and ascertaining its extent. That application was allowed vide Ext.P7, order which is under challenge in this proceeding. Learned counsel for petitioners contend that issue regarding title is not required to be gone in a suit for specific performance and that the point for consideration on the trial side is whether respondents are entitled to specific performance of Ext.P1, agreement for sale in respect of property referred to therein. 3. There is some weight in the contention raised that issue regarding title is not required to be gone in a suit for specific performance. In the case on hand this Court has permitted respondents to seek amendment of plaint incorporating relief under Section 12 of the Act and to move fresh application for appointment of Advocate Commissioner to identify the property and ascertain the extent. It is pursuant to the observations contained in the judgment of this Court that respondents have, after getting the plaint amended moved for appointment of Commissioner to get the property identified. It is not as if on the trial side such a procedure cannot be done at all. Having regard to the facts and circumstances including directions contained in the judgment of this Court referred to above I do not find any jurisdictional error or infirmity in learned Sub WP(C) No.16962/2010 3 Judge allowing the application to appoint Advocate Commissioner to get the property identified. In the circumstances I do not find reason to interfere with the order under challenge. Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks