IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 WP(C).No. 20783 of 2008(Y) -------------------------- AGAINST THE ORDER IN IA 726/08 IN OS.81/2007 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: ------------ S.BABU, S/O. SUBRAMANIAN, HINDU, AGED 30, KARTHIKEYA SREERAMAPALAYALAM, KARNNAKI NAGAR, MUTTANTHARA, KOPPAM AMSOM, PALAKKAD. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ------------- 1. P.V. VINOD, S/O.ADVOCATE M.VISWANATHAN, HINDU, AGED 30, DOOR NO. 18/760, ENGLISH CHURCH ROAD, PALAKKAD. 2. T.N. SATHIDEVI, W/O.ADVOCATE M. VISWANATHAN, HINDU, AGED 60, DOOR NO. 18/760, ENGLISH CHURCH ROAD, PALAKKAD. BY ADV. SRI.N.SUKUMARAN FOR R1-2 SRI.BOBBYMATHEW KOOTHATTUKULAM FOR R1-2 SRI.S.SHYAM FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.20783 of 2008 EXT.P1 TRUE COPY OF PLAINT IN O.S.NO.81/2007 FILED BY RESPONDENTS/DEFENDANTS. EXT.P2 TRUE COPY OF LICENCE DEED DATED 17.10.2006 EXECUTED BY THE RESPONDENTS/DEFENDANTS. EXT.P3 TRUE COPY OF WRITTEN STATEMENT DATED 1.6.2007 EXT.P4 TRUE COPY OF APPLICATION DATED 26.2.2008 SUBMITTED BY RESPONDENTS/DEFENDANTS. EXT.P5 TRUE COPY OF OBJECTION DATED 18.6.2008 SUBMITTED BY PLAINTIFFS EXT.P6 TRUE COPY OR ORDER DATED 18.6.2008 OF PRINCIPAL SUB COURT, PALAKKAD, IN I.A.NO.726 OF 2008 IN O.S.NO.81 OF 2008 //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.20783 of 2008 ------------------------------- Dated this the 18th August, 2008. J U D G M E N T Petitioner is the second plaintiff in O.S.No.81 of 2007, on the file of Sub Court, Palakkad. Respondents are the defendants. The suit was filed for a mandatory injunction to vacate the plaint schedule property. I.A.No.726 of 2008 was filed by the respondent for appointment of a commission. In Ext.P4 application, appointment of a commissioner was sought to identify the plaint schedule property, to ascertain its approximate market value and also to find whether the property is in a commercially important locality. Ext.P5 objection was filed contending that a report as sought for is not necessary for resolving the disputes involved in the suit, and, therefore, petition is to be dismissed. Under Ext.P6 order, learned Sub Judge appointed a commission without considering the objection raised by the respondents, holding that he was satisfied that appointment of Commission is necessary for a just disposal of the W.P.(C) No.20783 of 2008 2 case. This petition is filed under Article 227 of the Constitution of India to set aside Ext.P6 order. 2. Learned counsel appearing for the petitioner and respondents were heard. 3. Learned counsel appearing for the petitioner argued that as the suit now stands, there is no necessity for a report from a commissioner as sought for in Ext.P4 application. It was argued that respondents admitted execution of the sale deed in favour of the plaintiff, but only contended that it is a sham document and the sale deed is not sought to be set aside, and, therefore, value of the property or the locality of the property are not at all relevant or necessary facts for resolving the disputes involved in the case. 4. Learned counsel for the respondents argued that the property is worth more than Rs.1.5 crores and the sale consideration shown is only Rs.20 lakhs, and, therefore, the report of the Commissioner is necessary. W.P.(C) No.20783 of 2008 3 5. There is force in the submission of the learned counsel for the petitioner that when respondents admit execution of the sale deed and does not seek a decree to set aside the sale deed or a declaration that it is void on any vitiating grounds by preferring a counter claim, report of the Commissioner is not necessary. Unfortunately, this aspect was not considered by the learned Sub Judge. Infact, Ext.P5 objection filed by the plaintiff was not considered at all. Ext.P6 order is therefore quashed. Sub Judge is directed to consider I.A.No.726 of 2008 afresh and pass appropriate orders, in accordance with law. It is made clear that if no counter claim is filed and the sale deed executed in favour of the plaintiff was not sought to be set aside or declared void, report by the Commissioner, as sought for, is not necessary for deciding the suit. M.SASIDHARAN NAMBIAR, JUDGE nj.