IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 6501 of 2009(O) AGAINST THE ORDER IN IA.no. 179/09 IN OS.50/2009 of MUNSIFF-MAGISTRATE COURT, THODUPUZHA PETITIONER: IST DEFENDANT ---------------------------- K.G.KRISHNAKUMAR, S/O.GOPINATHAN NAIR, KRISHNAVILASAM HOUSE, VAZHITHALA P.O., PURAPPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.J.MICHAEL RESPONDENTS: PLAINTIFFS 1 TO 3 & 2ND DEFENDANT: ---------------------------------------------------------- 1. JOHN, S/O.OUSEPH, AGED ABOUT 76 YEARS, MEMANA HOUSE, PUTHENPURACKAL KUNIJI PO., PURAPPUZHA VILLAGE, THODUPUZHA TALUK. 2. BABY, S/O.JOHN, AGED 48, DO. HOUSE, DO. DO. DO. 3. JOSE, S/O.JOHN, AGED 53 DO. HOUSE, DO. DO. DO. 4. JOSEPH, S/O.OUSEPH, MEMANA HOUSE, (PUTHENPURACKAL) KUDAYATHOOR P.O. DO. VILLAGE, THODUPUZHA TALUK. R1 TO R3 BY ADV. SRI.P.VIJAYA BHANU SRI.THOMAS J.ANAKKALLUNKAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 6501 OF 2009 O ------------------------------------------------------ Dated this the 4th March, 2009 JUDGMENT This Writ Petition reveals a classic example of an attempt made by the first respondent to overreach the orders passed by this court in W.P.(C) No.5045 of 2009. 2. The writ petitioner filed O.S.No.320 of 2008, on the file of the Court of the Munsiff of Thodupuzha for declaration of easement and for consequential injunction. In that case, an Advocate Commissioner was appointed to inspect the plaint schedule properties. Advocate Smt.Binumol Joseph was appointed as the Commissioner. She filed a report and sketch. An order of temporary injunction was also granted against the defendants in O.S.No.320 of 2008. The writ petitioner (plaintiff in O.S.No.320 of 2008) alleged that the defendants violated the order of interim injunction. He filed an application under Rule 2A of Order XXXIX of the Code of Civil Procedure, which is pending. The petitioner applied for appointment of a Commissioner to note the acts which W.P.(C) NO.6501 OF 2009 :: 2 :: were allegedly done by the defendants in the suit in violation of the order of interim injunction. There was no serious objection to the appointment of a Commissioner. But, the defendants in O.S.No.320 of 2008 submitted that they have objection in appointing Advocate Smt.Binumol Joseph as the Commissioner. The court below, by the order dated 21.1.2009, allowed the application filed by the plaintiff and appointed Advocate Sri.P.V.George as the Commissioner. That order was challenged by the petitioner/plaintiff in W.P.(C) No.5045 of 2009. That Writ Petition was filed on 13.2.2009. Notice was ordered by special messenger. Counsel appeared for the respondents therein. W.P.(C) No.5045 of 2009 was disposed of on 19.2.2009. In modification of the order passed by the court below, Advocate Sri.P.V.George and Advocate Smt.Binumol Joseph were appointed as joint Commissioners. That judgment was passed in the presence of the counsel for the respondents therein. 3. After W.P.(C) No.5045 of 2009 was disposed of, it would appear that the first respondent therein and his sons filed O.S.No.50 of 2009 before the Munsiff's Court, Thodupuzha. It is submitted by the learned counsel for the respondents that the suit was filed on 20.2.2009. The dispute involved in O.S.No.320 of 2008 and W.P.(C) NO.6501 OF 2009 :: 3 :: O.S.No.50 of 2009 appears to be substantially the same. An application for appointment of a Commissioner was filed by the plaintiffs in O.S.No.50 of 2009. The court below appointed Advocate Sri.P.V.George as the Commissioner by the order dated 20.2.2009. 4. The grievance of the petitioner is that knowing fully well that in O.S.No.320 of 2008 Advocate P.V.George and Advocate Binumol Joseph were appointed as joint Commissioners, the respondents herein filed O.S.No.50 of 2009 and got an order appointing a Commissioner (Advocate Sri.P.V.George) for the purpose of overreaching the orders passed by this Court. This allegation is disputed by the respondents. Any how, it is a matter for consideration by the court below at the appropriate stage. 5. The relief prayed for in the Writ Petition is to set aside the order passed by the court below in I.A.No.179 of 2009 in O.S.No.50 of 2009, appointing Advocate P.V.George as the Commissioner. Learned counsel appearing for the respondents submitted that the Commissioner inspected the property on 20.2.2009 and 21.2.2009 and the order was complied with by the Commissioner. Counsel for the respondents submitted that the Writ Petition has, therefore, W.P.(C) NO.6501 OF 2009 :: 4 :: become infructuous. 6. In view of the fact that the Commissioner has already inspected the property, I do not think that it is proper at this stage to pass any order in this Writ Petition interfering with the order appointing the Commissioner. However, I hasten to add that the conduct of the first respondent in trying to overreach the judgment in W.P.(C) No.5045 of 2009 is far from satisfactory and is reprehensible. The petitioner may work out his remedy before the trial court. The Writ Petition is, therefore, closed with the above observations. (K.T.SANKARAN) Judge ahz/