IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD MARCH 2010 / 2ND PHALGUNA 1931 WP(C).No. 80 of 2008(H) ----------------------- AGAINST THE ORDER IN IA 3154/2007 IN OS.19/1993 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONER(S): --------------- 1. MARYKUTTY BABU, ADVOCATE, KARINGOZHAKKAL HOUSE, C.C.XLIV/56, ERNAKULAM VILLAGE, S.R.M.ROAD, COCHIN-682 018. 2. DENNING K.BABU, S/O. BABU THOMAS K., KARINGOZHAKKAL HOUSE, CC XLIV/56, ERNAKULAM VILLAGE, S.R.M.ROAD, COCHIN-682 018. BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SRI.VARUGHESE M EASO SRI.VIVEK VARGHESE P.J. SMT.PRAISHEEL PRAKASAM SMT.NISHA JOHN SRI.K.B.ARUN SMT.ELIZEBETH MEERA SRI.P.J.VINOD JOSEPH SMT.NITHARA GAYATRI RESPONDENT(S): --------------- 1. PRABHULLACHANDRAN, S/O. BHARATHAN PILLAI, AGED ABOUT 48 YEARS, BHARATH BHAVAN, EDAPPALLY P.O., COCHIN-682 024, (EMPLOYEE, UNION BANK OF INDIA, MARINE DRIVE BRANCH, ERNAKULAM, COCHIN-682 031.) 2. KRISHNAKUMAR, S/O. BHARATHAN PILLAI, AGED ABOUT 45 YEARS, EDAPPALLY, COCHIN-682 024, MERCHANT, S.R.M.ROAD, COCHIN-682 018, -DO- 3. JAYASANKAR, S/O. BHARATHAN PILLAI, AGED 43 YEARS, ACHANVEEDU, RESIDING AT BHARATH BHAVAN, EDAPPALLY P.O., COCHIN-682 024. 4. DROUPATHY AMMA, W/O. BHARATHAN PILLAI, BHARATH BHAVAN, EDAPPALLY P.O., COCHIN-682 024. ADV. SRI.K.J.KURIACHAN FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.80/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF I.A.NO.1144/1999 IN O.S.NO.19 OF 1993 FILED BY THE FIRST PLAINTIFF AND THE FIRST PETITIONER. EXT.P2: COPY OF I.A.NO.3154/2007 FILED BY THE PETITIONERS FOR APPOINTMENT OF COMMISSION. EXT.P3: COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENTS. EXT.P4: COPY OF REPLY AFFIDAVIT FILED BY THE PETITIONERS. EXT.P5: COPY OF THE IMPUGNED ORDER IN I.A.NO.3154/2007 OF THE IIIRD ADDL. SUB JUDGE, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.80 OF 2008 () ----------------------------------- Dated this the 23rd day of March, 2010 J U D G M E N T Plaintiffs in O.S.No.19 of 1993 have filed this writ petition challenging the order passed by the learned Additional Sub Judge, Ernakulam dismissing an application moved by them for appointing an Advocate Commission to identify the suit properties with the assistance of a surveyor. Suit is one for declaration of title and recovery of possession. The respondents have filed the written statement resisting the suit claim contending that the plaintiffs have no title over the suit property. Previously, an application moved by the plaintiffs for appointment of a commission had been negatived by the court considering the disputed issues involved and also taking note of the categorical assertion made by the contesting defendants that identity of the property is not the disputed question but the title. The present application was moved by the plaintiffs after WPC.80/08 2 impleadment of an additional plaintiff in the suit, which, it is stated was made on account of the contentions raised by the defendants in their written statement. Whatever that be, the learned Sub Judge after considering the merit of that application with reference to the objections raised by the defendants and also taking note of the dismissal of the previous application for commission came to the conclusion that for a fair and proper disposal of the suit, an appointment of a Commission for identifying the suit property as canvassed by the plaintiffs is not essential. Correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned counsel for the petitioners/plaintiffs submitted that very many observations made in the impugned order of the court, if not removed, are likely to cause prejudice to the plaintiffs in the trial. Some conclusions drawn by the learned Sub Judge, it is submitted, that too, without giving an opportunity to the WPC.80/08 3 plaintiffs to lead evidence to substantiate the reliefs canvassed in the suit, is likely to cause serious prejudice in the trial of the suit if they are retained. On the other hand, the learned counsel for the contesting respondents submitted that whatever observations made by the court are based on the records and materials produced in the case. Perusing the impugned order with reference to the statement made by the counsel on both sides, I find the observations made by the learned Sub Judge, needless to point out, have been made only for the purpose of disposing the commission application. Such observations in disposing the interlocutory application shall have no bearing or reflection in the final disposal of the suit, as it has to be done on the basis of the evidence to be let in the case. To alley the apprehension raised by the learned counsel for the plaintiffs, I make it clear that the learned Sub Judge shall not take into consideration any of the observations in the impugned order dismissing the commission application in the final disposal of the suit. Having regard to the fact that the suit is pending for the last more than one and a half decades, there will be a direction WPC.80/08 4 to the court to give top priority for the trial of the suit. Writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp WPC.80/08 5