IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 28733 of 2009(O) -------------------------- OS.387/2005 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- PADMAKUMAR, S/O.SREEDHARAN NAIR, AGED ABOUT 40 YEARS,TC.NO.19/1419, LAKSHMIKRISHNA, THANALAM, POOJAPPURA, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENT(S): --------------- JAYALEKSHMI, D/O.PADMAVATHY AMMA, ARAPPURA VEEDU, KOTTAKKAKAM, ANCHAMADA MURI, VATTIYOORKAVU, THIRUVANANTHAPURAM. ADV. SRI.P.K.NIJOY FOR R1 SMT.C.PRABITHA FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.28733 OF 2009 (O) ----------------------------------- Dated this the 2nd day of November, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records, which may lead to the passing of Ext.P4 order and quash the same as illegal, arbitrary and unsustainable after issuing a writ of certiorari or other appropriate writ, order or direction. ii. to direct the 2nd Additional Sub Court, Thiruvananthapuram to consider and pass orders in Ext.P3 application afresh after holding that a report of a commissioner is highly necessary to adjudicate the issues in dispute in an effective manner. 2. Petitioner is one among the plaintiffs in O.S.No.387 of 2005 on the file of the Sub Court, Thiruvananthapuram. Suit is one for money, and the respondent, the defendant. In WPC.28733/2009 2 respect of the property having an extent of 38 cents belonging to the respondent, the parties have entered into an agreement of sale, and pursuant thereto, the plaintiffs carried out developments over the property so as to facilitate its sale, dividing it by plots, is the case of the petitioner. The defendant had promised to pay the sum expended by the plaintiffs for the improvements made, but, there was default on her part in honouring such agreement, is the case of the petitioner. The plaintiffs in the suit have moved an application for ascertaining the improvements, which are stated to have been done by them in levelling of the plot, forming of a road etc. through an Advocate Commissioner. Ext.P3 is that application. The application was objected to by the defendant. The learned Sub Judge, after hearing both sides, dismissed the application vide Ext.P4 order. Propriety and correctness of Ext.P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. A copy of the WPC.28733/2009 3 agreement entered into by the parties has been subsequently produced in the writ petition. Relying on the terms covered by the agreement that the defendant has agreed to compensate the improvements, if any, effected, in case any default was committed by her in performing her part of the contract, the learned counsel for the petitioner contended that the appointment of an Advocate Commissioner to ascertain the improvements effected by the plaintiffs is necessary for a fair disposal of the suit. It is evident from the allegations set out in Ext.P1 plaint and also the agreement of sale that the arrangement between the parties was sale of the property after its division into plots to third parties. Some of the plots have already been sold to third parties. There was default on the part of the defendant to fulfill and honour the terms agreed upon in respect of the sale of the rest of the plots, is the case of the plaintiffs to seek the suit claim which is based on various grounds including the advance alleged to have been paid, improvements made over the property, expenses incurred etc. Suit has been filed as one for recovery of money on the breach of contract allegedly committed by the WPC.28733/2009 4 defendant. The court below taking note that no materials were produced to substantiate what were the improvements alleged to have been made by the plaintiffs in the suit property and also even on the admitted facts, the parties have together disposed of portions of the property covered by the agreement of sale, and what remained in the possession of the defendant at present is only the 'B' schedule property, found that no purpose will be served by sending out an Advocate Commissioner to ascertain the improvements which are stated to have been made by the plaintiffs. Agreement of sale is seen executed in 2003 and after development of the property, some portions have already been sold. In respect of the balance property under the possession of the defendant, sale could not be effected on account of the fault of the defendant, is the case of the plaintiffs. The plaintiffs have sought for ascertainment of the improvements made not only in respect of the 'A' and 'B' schedule properties, some portions of which have already been sold to strangers, but in respect of a road alleged to have been formed by them adjacent to the property. In the absence of any materials showing the work done by the WPC.28733/2009 5 petitioner, no purpose will be served by sending out an Advocate Commissioner for ascertaining the matters sought for by the plaintiffs. I do not find any impropriety or illegality in the order passed by the court below declining the request of the plaintiffs for appointment of an Advocate Commissioner. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp