IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 34156 of 2008(N) ------------------------------------ OS.5/2008 of SUB COURT, MAVELIKKARA .................... PETITIONER(S): ----------------------- THE GOOD SAMARITAN CHARITBLE TRUST, REPRESENTED BY ITS CHAIRMAN JOSE KOSHY GEORGE, MATTATHUKALAYIL VEETTIL, CHERUMUKHA, NOORANADU, ALAPPUZHA DISTRICT. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): ------------------------- 1. SAMUEL, S/O. OOMMEN, PEEDIKAYIL, PUTHENPURAYIL, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKKARA. 2. JACOB DANIEL, KEETHAPARAMBIL HOUSE, KARUMBANATTUKARA, CHANGANASSERY, KOTTAYAM DISTRICT. 3. TOMY DANIEL, DO. DO. 4. SUSAN DANIEL, DO. DO. 5. BABU SAMUEL, PEEDIKAYIL PUTHEN VEEDU, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKKARA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 34156 of 2008 ---------------------------- Dated this the 19th day of November, 2008 JUDGMENT This petition is filed by the plaintiff in O.S. No.5 of 2008 of Sub Court, Mavelikkara, which was a suit for specific performance of an agreement to sell the schedule property in their favour by the defendant. The agreement is not produced before the court, though the plaint is produced as Exhibit P1. The petitioner moved Exhibit P2 commission application in the said suit and the respondents filed objection there to, copy of which is produced as Exhibit P3. The trial court dismissed Exhibit P2 commission application vide Exhibit P4 order that is assailed before me in this writ petition. Exhibit P2 commission application is filed to ascertain the lie and boundaries of the schedule property and the building and structures there on and to report as to whether any building is constructed therein and to ascertain the details of waste if any committed by the respondents/defendants in the schedule property. It is submitted that the court below has granted injunction prohibiting commission of W.P(c) No. 34156/2008 2 waste vide order dated 21/01/2008 on I.A. No.12 of 2008. The commission application is filed on 21/02/2008. However, it does not appear that any motion was made to have the matter heard and orders obtained on Exhibit P2 Commission application either urgently or within the reasonable time. Consequently, therefore the petition lied over and counter was filed by respondents 2 to 5 only on 23/05/2008. Thereafter also no keen interest was shown by the petitioner. The matter was heard and the impugned Exhibit P4 order was passed by the court below only as late as on 18/09/2008. It is submitted that the purpose of the commission application was mainly to get report regarding the details of waste committed by the respondents in the schedule property violating order of injunction. The injunction was ordered as already stated on 21/01/2008. The said order has not been produced and consequently this court is unable to understand as to what exactly was the injunction order and what was prohibited by the said order. However, it is submitted that the property has been transferred by the respondents to 3rd parties on 3/03/2008 as observed by the court below. No useful purpose will be served by deputing W.P(c) No. 34156/2008 3 commission as on the date of passing Exhibit P4 order dated 18/09/2008. When the respondent had already transferred the property on 3/03/2008 to 3rd parties and it will not be possible to ascertain with precision as to whether waste of any sort if any committed was between 21/01/2008 and 3/3/2008 or between 3/03/2008 and 18/09/2008. It was for that reason that the court below found it not desirable to allow the application for issuance of commission. Consequently, the court below dismissed the commission application and rightly too. There is no merit in this writ petition and it is dismissed. K.P. BALACHANDRAN, JUDGE scm