IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 16163 of 2009(O) -------------------------- OS.NO.57/2007 OF PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER: ------------------- GOWRI AMMA @ OMANA AMMA, AGED 74, D/O. PARUKUTTY AMMA, PATTASSERY HOUSE, VADANAM MURI, PUNNAPRA VILLAGE. BY ADVS. MR.P.N.RAMAKRISHNAN NAIR, MR.P.VISWANATHAN. RESPONDENTS: ------------------------ 1. PATTASSERI KUDUMBA KSHETHRAYOGAM, VANDANAM, ALAPPUZHA. 2. PRESIDENT, PATTASSERI KUDUMBA KSHETHRAYOGAM, VANDANAM, ALAPPUZHA. 3. SECRETARY, PATTASSERI KUDUMBA KSHETHRAYOGAM, VANDANAM, ALAPPUZHA. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.16163 of 2009 - O --------------------------------- Dated this the 15th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To call for the records in O.S.No.57/2007 on the file of the Munsiff's court, Alappuzha. ii) To issue a writ of certiorari or other appropriate writ or direction by setting aside Ext.P5 order. iii) To issue a writ or direction allowing Ext.P3 application.” 2. Petitioner has instituted a suit as O.S.No.57/2007 before the Munsiff court, Alappuzha seeking a declaration of title and possession over the properties described as item No.2 in the suit and also for an injunction to restrain the defendants from trespassing upon and committing any waste or putting any structures in that property. In that suit, on an application moved by the defendant, an advocate commissioner conducted a local inspection, measured out the property and filed a report and plan. The plaintiff moved an application for amendment of the W.P.(C).No.16163 of 2009 - O 2 plaint so as to incorporate a new relief raising allegations that measurement has to be made out on the basis of the old survey records. It is submitted, that application was allowed by the court and the amendment was carried out. An application moved by the plaintiff for appointment of a commission again to measure out the property on the basis of the old survey records was disallowed by the learned Munsiff. Ext.P5 is the copy of that order. Propriety and correctness of that order is impeached in this writ petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner/plaintiff in the suit. 4. Though a copy of the petition moved by the plaintiff for amendment has not been incorporated in the writ petition, at the time of hearing, the learned counsel for the petitioner handed over to me a copy of that petition. The amendment carried out in the plaint would indicate that the plaintiff has been permitted to incorporate an allegation in the plaint that measuring of the scheduled item No.2 with reference to old survey plan and title deed is essential. In the relief column also W.P.(C).No.16163 of 2009 - O 3 an amendment is permitted by allowing to incorporate a relief for fixing of the western boundary of item No.2 property. In view of the amendment so carried out in the plaint, it is submitted by the learned counsel, the order passed by the court below under Ext.P5 declining the request of the plaintiff for appointment of a fresh commission is not proper and correct. Perusing Ext.P3 application moved by the plaintiff for appointment of a commission, it is seen, such application was moved as early as in 31.10.2008. The amendment of the plaint, it is submitted, was allowed on 22.1.2009. So, if at all the plaintiff was vigilant, appropriate orders from the court could have been obtained directing the commissioner to carry out measurement of the property on the basis of old survey report, when a commissioner was appointed for the purpose of measuring the property. That appears to have been not done. Further more, once a commissioner appointed by the court files a report and plan, it is not proper or legal for the court to appoint a second commission. A Division Bench of this Court in Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) held as follows: W.P.(C).No.16163 of 2009 - O 4 “That the first commissioner's report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work is a wholesome rule of law based on public policy. The proceedings in the court below could be expedited, without waste of time and money. We are of the view, that only if the court has reason to be dissatisfy with the proceedings and report of the first commissioner for reasons stated, it can appoint a second commissioner for further enquiry. This is a condition precedent. The provision contained in Order XXVI Rule 12 CPC is “vital”. Strict adherence alone will facilitate speedier, effective and cheaper administration of justice. Therefore, the appointment of the second commissioner and the reports filed by him without setting aside the first commissioner's report is wholly illegal and without jurisdiction. Since the court committed a “jurisdictional error” in the matter, S.99 of CPC can be of no avail.” 5. Such being the position of law with respect to appointment of second commission, I find no impropriety or illegality in the order passed by the learned Munsiff under Ext.P5, declining the request of the plaintiff to have a second commission. But I make it clear that, if after an enquiry is W.P.(C).No.16163 of 2009 - O 5 conducted over the report and plan already presented before the court in respect of which it is submitted serious objections have already been raised by the plaintiff and the court finds there is serious omission/discrepancy and the report is liable to be set aside and measurement of the property with reference to the old survey records is necessary for a proper decision and the disputes arising for adjudication in the suit, Ext.P5 order will not be a bar in passing appropriate orders/directions. Subject to the above observation, this writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-