IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 12201 of 2009(O) -------------------------- AGAINST THE ORDER DATED 06/04/2009 IN IA 933/2009. IN OS.260/2008 of SUB ORDINATE JUDGE'S COURT, TIRUR .................... PETITIONER(S): --------------- POTTETH SURESH, S/O.RADHA AMMA, A2 GALAXY ARCADE, 43/2566, ABDURAHIMAN ROAD, KALOOR, COCHIN. BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.INNOCENT FRANCIS PAPALI RESPONDENT(S): --------------- POTTETH NARAYANANKUTTY, S/O.POTTETH NANIKUTTY AMMA, LAKSHMI NIVAS, VEEKSHNAM ROAD, COCHIN-682018. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------- W.P.(C).No.12201 of 2009 -------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT The petitioner is the 5th defendant in O.S.No.260 of 2008, on the file of the court of the Subordinate Judge of Tirur. The suit was filed for injunction in respect of a Madom, Nagathara and certain other rights which according to the plaintiff, he is entitled to enjoy as per the Tharavad partition evidenced by document No.1575 of 1949. The plaintiff is a member of the 8th Thavazhi whereas the defendants are the members of the sixth Thavazhi. 2. A Commissioner was appointed in the case who inspected the property. Later, I.A.No.933 of 2009 was filed by the plaintiff for deputing the Commissioner to inspect the Madom alleging that certain repairs and maintenance work were done by one Potteth Sankaran Nair. In the affidavit accompanying the application, it is stated that changes have been brought out in the building of the Madom after the inspection of the Commissioner as per the order in I.A.No.2146 of 2008. In WPC No.12201/2009 2 I.A.No.933 of 2009, the Writ Petitioner filed objections. The court below allowed the application as per the order dated 6th April 2009 and the Commissioner was directed to inspect the property. 3. The court below noticed in the order that admittedly, the Madom, Nagathara and other common properties are the subject matter of the suit. The question whether the changes have been brought out by the defendants or any other party is not relevant at this stage. The court below held that by appointing a Commissioner, no prejudice would be caused to any of the defendants. At the time of hearing of the application, a submission was made by the counsel appearing for the respondents in the application, in which the Writ Petitioner is also a party, that they may be allowed to file work memo. They also submitted that the Commissioner may inspect the property after one week to ensure the presence of the respondents, who are not in station. The court below appointed Advocate P.Viswanathan as the Commissioner. It was also held that the parties are at liberty to file work memo before the Commissioner. It is noticed in the order thus: WPC No.12201/2009 3 “As agreed between the parties and in consultation with the Advocate Commissioner date of inspection is fixed on 11.4.2009 at 11 A.M.” The order dated 6th April 2009 is under challenge in this Writ Petition. 4. The order impugned in this Writ Petition is an order by which the court below appointed a Commissioner to inspect an item of property in dispute. No prejudice would be caused to the Writ Petitioner or any other defendant, if the Commissioner inspects the property. There is no allegation for the plaintiff that the defendants have committed some mischief. They only wanted the Commissioner to note the changes brought out to the Madom. The court below thought that let the relevant facts be brought before court in the form of a Commissioner’s report. It cannot be said that the view taken by the court below is illegal or without jurisdiction. There is no scope for interference under Article 227 of the Constitution of India. The Writ Petitions lacks merit and it is accordingly dismissed. K.T.SANKARAN, JUDGE csl