IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 OP(C).No. 201 of 2011(O) --------------------------------- AGAINST THE ORDER DATED 06/11/2010 IN IA.7438/2010 IN OS.113/2004 of II ADDL.M.C.,NEYYATTINKARA ...................................................... PETITIONER: ------------------- BABY, W/O.PUSHPARAJ, GURU BHAVAN, SUBHANANDA NAGAR, MURIYANKARA DESOM, PARASSALA VILLAGE. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT: --------------------- HARISON, S/O.JOHN, MANNANVILA VEEDU, AALAYAVILAKAM, PARASUVAKKAL DESOM, PARASSUVAKKAL VILLAGE. R1 BY ADV. SRI.R.GOPAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU OP(C).No. 201 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF PLAINT IN O.S. 113/04 DTD 16/02/2004 OF ADDL. MUNSIFF'S COURT II, NEYYATTINKARA. P2 : COPY OF WRITTEN STATEMENT DTD 22/05/2010 IN O.S 113/04. P3 : COPY OF I.A 7438/10 IN O.S.113/04 FILED BY PETITIONER. P4 : COPY OF OBJECTION DTD 29/10/10 IN I.A 7438/10 IN O.S 113/04. P5 : COPY OF ORDER IN I.A 7438/10 IN O.S 113/04 OF THE COURT OF ADDL. MUNSIFF II, NEYYATTINKARA DTD 06/11/10. RESPONDENT'S EXHIBITS : NIL //TRUE COPY/ P.A TO JUDGE. STU THOMAS P.JOSEPH, J. ==================================== O.P(C) No.201 of 2011 ==================================== Dated this the 11th day of October, 2011 J U D G M E N T This Original Petition is filed by the defendant in O.S. No.113 of 2004 of the court of learned Second Additional Munsiff, Neyyattinkara. Respondent filed the suit for specific performance of an agreement (allegedly) for sale of the suit property and executed by petitioner. Petitioner contended that at a time when herself and her husband were hard pressed for money in connection with the marriage of their daughter they availed a loan of `30,000/- from the respondent and they executed agreements for sale in respect of their respective properties for the due repayment of the loan. Petitioner filed I.A. No.7438 of 2010 to depute an Advocate Commissioner to ascertain local importance of the suit property and its market value. Respondent while opposing that application contended that in case the application is allowed the local importance and market value of the property as on the date of agreements may be ascertained through the Advocate Commission. Learned Munsiff was not impressed by the prayer in the application and dismissed it as per Ext.P5, order O.P(C) No.201 of 2011 -: 2 :- dated 06.11.2010. The said order is under challenge. 2. Learned counsel for petitioner contends that learned Munsiff has taken the view that the suit being one for specific performance of an agreement for sale, there is no necessity for a report and plan through an Advocate Commissioner as prayed for in I.A. No.7438 of 2010. It is contended by the learned counsel that the purpose of the report of Advocate Commissioner is to show local importance and market value of the property as on the date of agreement to convince the court that in such a situation petitioner would not have agreed to sell the property for the consideration stated in the agreement. Learned counsel for respondent while asserting that having regard to the nature of the suit there is no scope for a commission report and plan, contended that in case this Court is inclined to allow the request the matters sought to be ascertained by the respondent also may be got ascertained through the Advocate Commissioner. 3. It is true that in I.A. No.7438 of 2010 petitioner, apart from requesting for a report has also asked for a sketch. But that is not for the purpose of identification of the suit property. Petitioner has a contention that the agreement was not intended to be one for sale of the suit property but was merely as security O.P(C) No.201 of 2011 -: 3 :- for the loan transaction. It is to prove that contention that petitioner wanted the local importance of the suit property to be brought in through the report of the Advocate Commissioner. That cannot be said to be wholly irrelevant. Whether that would prevail upon the agreement for sale relied on by the respondent is a matter which the trial court has to decide. Having regard to the circumstances stated above I am inclined to think that request made by petitioner to depute an Advocate Commissioner to ascertain local importance of the suit property is relevant for consideration. But it must be as on the date of execution of the agreement. Subsequent developments that may have taken place in or near the suit property does not appear to me as relevant for decision. 4. Also the request for ascertaining market value of the property through the Advocate Commissioner cannot be allowed. For, value of the property as on the date of the agreement is something which the parties have to prove by other appropriate evidence. In the light of what I have stated above I am inclined to interfere with the impugned order. Original Petition is disposed of as follows: O.P(C) No.201 of 2011 -: 4 :- (a) Exhibit P5, order dismissing I.A. No.7438 of 2010 in O.S. No.113 of 2004 of the court of learned Munsiff is set aside. (b) I.A. No.7438 of 2010 is allowed, except to the extent it related to ascertaining of market value of the property and request No.5 in that application. (c) Advocate Commissioner shall report on the matters requested for by the respondent also in Ext.P4, application, except the market value of the property. (d) It is made clear that the Advocate Commissioner is to ascertain local importance of the property as also the developments if any in and near the suit property as on the date of execution of the agreement in question. (e) So far as the value of property as on O.P(C) No.201 of 2011 -: 5 :- the date of agreement is concerned I make it clear that it is open to the parties to adduce other evidence as available to them and as provided under law. (f) Learned Munsiff shall fix the batta payable to the Advocate Commissioner which shall be shared by petitioner and respondent in equal proportion. THOMAS P. JOSEPH, JUDGE. vsv