IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 OP(C).No. 3894 of 2011(O) ------------------------------------ OS.663/2009 of PRL.SUB COURT,TRIVANDRUM .................................... PETITIONER(S): ----------------------- 1. K.THANKAMANI AMMA, AGED 62 YEARS, W/O. SREEKANTAN NAIR, ROHINI BUILDINGS, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. N.SREEKANTHAN NAIR, AGED 67 YEARS, ROHINI BUILDINGS, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): ------------------------ ALICE PAUL, W/O. PAUL, MALIAKAL HOUSE, KUZHUPPILLY VILLAGE, KOCHI TALUK, ERNAKULAM. BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD OPC NO. 3894/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 : A TRUE COPY OF THE PLAINT IN OS NO.663/09 BEFORE THE SUB COURT, THIRUVANANTHAPURAM. EXT.P2 : A TRUE COPY OF THE WRITTEN STATEMENT 22.1.2010 FILED BY THE PETITIONERS IN OS NO.663/09 BEFORE THE SUB COURT, THIRUVANANTHAPURAM. EXT.P3 : A TRUE COPY OF THE COMMISSION APPLICATION IA NO.3324/09 IN OS NO.663/2009. EXT.P4 : A TRUE COPY OF THE OBJECTION FILED BY THE FIRST PETITIONER, DTD.23.9.2009, TO EXHIBIT P3. EXT.P5 : A TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, DTD.3.8.2010. EXT.P5(a): A TRUE COPY OF THE REPORT OF THE EXPERT, DTD.3.8.2010. EXT.P6 : A TRUE COPY OF THE COMMISSION APPLICATION IN IA NO.2821/2010 FILED BY THE PETITIONERS. EXT.P7 : A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT, DTD.22.7.2010, TO EXHIBIT P6. EXT.P8 : A TRUE COPY OF THE ORDER DTD.8.4.2011 PASSED BY THE COURT OF THE PRINCIPAL SUB JUDGE, THIRUVANANTHAPURAM IN IA NO.2821/2010 IN OS NO.663/2009. RESPONDENTS' EXHIBITS NIL TRUE COPY P.A. TO JUDGE SD THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3894 of 2011 -------------------------------------- Dated this the 6th day of December, 2011. JUDGMENT Respondent appears through counsel. 2. Defendants in O.S.No.663 of 2009 of the court of learned Principal Sub Judge, Thiruvananthapuram challenge Ext.P8, order dismissing I.A.No.2821 of 2010 which is for the appointment of an Advocate Commissioner to ascertain and report on matters requested for in Ext.P6, application. Learned Sub Judge dismissed that application for the reason that whatever are sought to be ascertained through Ext.P6, application have already been reported by the Advocate Commissioner in Ext.P5, report and hence a further commission is not required. Learned counsel submitted that prayer (a) in Ext.P6, application is to direct the Advocate Commissioner ascertain plinth area of the ground floor of building in plaint schedule property with the available evidence and the approximate value of terraced building situated in the ground floor and value of the building in the first floor. Learned counsel submitted that if the building as such is not in existence it may not be possible for the Advocate Commissioner to assess value of the building or any portion of it . But, with the available remnants if any it is possible for the Advocate Commissioner to ascertain the plinth area. It is also contended that in Ext.P5, report, that aspect has not been reported by the Advocate Commissioner. OP(C)No.3894/2011 2 3. Having heard learned counsel on both sides and going through Ext.P5, report and Ext.P6, application I am inclined to think that Ext.P6, application can be allowed to the extent that the Advocate Commissioner will ascertain whether remnants of the building in question is available and if so, whether the plinth area could be ascertained from such remnants. To that extent Ext.P6, application can be allowed. Resultantly this Original Petition is allowed in part. Ext.P8, order will stand set aside and Ext.P6, application will stand allowed to the extent stated hereunder: i. Learned Sub Judge is directed to appoint an Advocate Commissioner, if possible the same Advocate who submitted Ext.P5, report, to ascertain whether any remnants of the building in question is available and if so to report if possible the plinth area of ground floor of the said building based on the remnants if any available. ii. Batta payable to the Advocate Commissioner by the petitioners shall be fixed by the learned Sub Judge. THOMAS P.JOSEPH, Judge. cks