IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 OP(C).NO. 843 OF 2010(O) -------------------------------------- AS.100/2007 OF PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER: -------------------- GANESAN, AGED 49, S/O. KANNAMPAATHAZHATHETHIL PARUKUTTY NAGYAAR, POYYA VILLAGE, POOPATHI DESOM, KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------ 1. JOSE, S/O. PAZHAYATTIL CHAKUNI, KOTTAMURI DESOM, VADAMA VILLAGE, MUKUNDAPURAM TALUK-680732. 2. PUAULY, S/O. PAZHAYATTIL CHAKUNNI, KOTTAMURI DESOM, VADAMA VILLAGE, MUKUNDAPURAM TALUK-687302. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.843 of 2010 ==================================== Dated this the 24th day of November, 2010 J U D G M E N T Plaintiff in O.S. No. 1996 of 2003 of the court of learned Munsiff, Irinjalakuda and appellant in A.S. No.100 of 2007 of the court of learned Sub Judge, Irinjalakuda is the petitioner before me challenging Ext.P4, order dated August 20, 2010 dismissing I.A. No.3902 of 2009 (in A.S. No.100 of 2007) for issuing a commission to inspect the property. Learned Sub Judge observed that “there is no absolute necessity to issue a commissioner at this stage” and dismissed the application. That order is under challenge. Learned counsel submits that on the facts and circumstances of the case it was necessary to call for report through the Advocate Commissioner as requested in I.A. No.3902 of 2009. Petitioner sued respondents for a decree for mandatory and prohibitory injunction alleging that respondents have caused obstruction to his right of access through plaint B schedule. In the trial court Ext.C1 to C2(a) report and sketches were obtained. But the trial court was not inclined to accept case of petitioner and dismissed the suit. That judgment and decree are under challenge in the O.P(C) No.843 of 2010 -: 2 :- appeal. Petitioner filed I.A. No.3902 of 2009 in the appeal. Learned Sub Judge observed that “at this stage” it is not necessary to issue a Commission. If the available report and sketches are sufficient to dispose of the appeal it is open to the learned Sub Judge to dispose of the appeal with the available materials. If at the time of hearing the appeal learned Sub Judge thinks it necessary that further information through Advocate Commissioner is required it is open to the learned Sub Judge to appoint a Commissioner and call for such report as provided under law. It is also open to the learned Sub Judge, if found necessary to set aside judgment and decree of the trial court and remit the case to the trial court to get further report through the Advocate Commissioner. Learned Sub Judge has only said that “at this stage” it is not necessary to appoint a Commissioner. I do not find reason to interfere with the impugned order. Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv