IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 OP(C).No. 806 of 2011(O) AGAINST THE ORDER DATED 21/01/2011 IN IA.1648/2010 IN OS.170/2007 OF MUNSIFF'S COURT, TIRUR PETITIONER/PLAINTIFF: ----------------------------------------- SAINUDHEEN @ MANU, S/O.MAMMALI HAJI, POTTAMMAL VAKAYIL, NADUVATTOM AMSOM, CHELLUR DESOM, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER SMT.M.SINDHU THANKAM RESPONDENT: DEFENDANT: ------------------------- ALIBAVA, S/O.MUHAMMED, KIZHAKKEPARAMBIL, KUTTIPPURAM-679 571, MALAPPURAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.170 OF 2007 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR DATED 1.8.2007. EXT.P2 TRUE COPY OF WRITTEN STATEMENT DATED 25.9.2007 FILED BY THE RESPONDENT IN O.S.NO.170 OF 2007 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR. EXT.P3 TRUE COPY OF AFFIDAVIT AND PETITION DATED 3.7.2010 IN I.A.NO.1648 OF 2010 IN O.S.NO.170 OF 2007 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR. EXT.P4 TRUE COPY OF THE INTERIM REPORT DATED 17.1.2011 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A.NO.1648 OF 2010 IN O.S.NO.170 OF 2007 ON THE FILE OF THE MUNSIFF'S COURT, TIRUR WITH THE PETITIONER'S WRITTEN REQUEST. EXT.P5 CERTIFIED COPY OF ORDER DATED 21.1.2011 IN I.A.NO.1648 OF 2010 IN O.S.NO.170 OF 2007 PASSED BY THE MUNSIFF'S COURT, TIRUR. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 806 OF 2011 O ------------------------------------------------------ Dated this the 22nd day of June, 2011 JUDGMENT The petitioner filed O.S.No.170 of 2007 on the file of the Munsiff's Court, Tirur against the respondent for declaration and consequential injunction and for recovery of possession. The petitioner filed I.A.No.1648 of 2010 to appoint a Commissioner to inspect the property with reference to the survey records and with the help of a surveyor. The commission application was allowed by the court below. The Commissioner appointed in the case issued notice dated 22.12.2010 to the parties fixing the date of inspection on 14.1.2011. On 13.1.2011, the petitioner submitted an application to the Commissioner to postpone the inspection on the ground that the petitioner was suffering from fever. The Commissioner filed an interim report dated 17.1.2011 stating that he could not inspect the property on 14.1.2011 as the plaintiff requested for postponement of the inspection on the ground that he was ill. The court below passed Ext.P5 order dated 21.1.2011, which reads as follows: O.P.(C) NO.806 OF 2011 :: 2 :: “Commissioner reports non-co-operation from plaintiff. Plaintiff absent today. Counsel was not able to explain the reasons for non-co-operation. No application or statement is filed to excuse any omissions. In these circumstances, Interlocutory Application closed. Commissioner shall return warrant.” Ext.P5 order is under challenge in this Original Petition filed by the plaintiff. 2. The Commissioner did not say that the plaintiff did not co-operate. The Commissioner only filed an interim report stating his inability to inspect the property on 14.1.2011. The court below was under the wrong impression that the Commissioner's view was that the plaintiff did not co-operate. This is incorrect. The court below, by the order impugned, dismissed the commission application. The order is illegal and unsustainable. 3. Accordingly, the order dated 21.1.2011 in I.A.No.1648 of O.P.(C) NO.806 OF 2011 :: 3 :: 2010 is set aside. The Commissioner shall inspect the property with notice to both parties. The learned counsel for the petitioner undertakes on behalf of the petitioner that the petitioner would co- operate with the Commissioner and he would not request for postponement of the inspection. The Original Petition is allowed as above. (K.T.SANKARAN) Judge ahz/