IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 5TH JUNE 2007 / 15TH JYAISHTA 1929 WP(C).No. 22291 of 2006(D) -------------------------- OS.597/2002 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: -------------------- E.R. MARTIN, AGED 55, S/O. CHACKO ROCKEY, PALLATH HOUSE, PALARIVATOM DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: ------------------------ 1. JOSEPH, S/O. OUSEPH, AGED ABAOUT 70, PALLATH HOUSE, PALLATH LANE, MAMANGALAM, NEAR AVE MARIYA CHURCH, EDAPPALLY S. VILLAGE. 2. XAVIER, S/O. OUSEPH, AGED ABOUT 64, PALLATH HOUSE, PALARIVATTOM DESOM, POONITHURA VILLAGE. 3. ANTONY, S/O. OUSEPH, AGED ABOUT 61, PALLATH HOUSE, PALARIVATTOM DESOM, POONITHURA VILLAGE. 4. SHEETHA BABU, AGED 26, KANNAMKERY HOUSE, MADAVANA P.O.,PANANGAD, KOCHI. 5. LAIMA BAIJU, W/O. BAIJU, AGED 24, NADUVELI HOUSE, KUMBALANGI P.O., KOCHI. BY ADV. SRI.P.K.RAVISANKAR for R2 & R3 SRI.K.R.MICHAEL for R1 SRI.FRANCIS JOSEPH KURISINKAL SRI.R.D.SHENOY (SR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.22291/2006 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF INJUNCTION SCHEDULE IN I.A.4026/02 IN O.S.597/02 OF SUB COURT, ERNAKULAM SUBMITTED BY THE PETITIONER. EXT.P2: COPY OF WRITTEN STATEMENT SUBMITTED RESPONDENTS 2 & 3 IN O.S.597/02 OF SUB COURT, ERNAKULAM DTD. 4/01/03. EXT.P3: COPY OF 'THANDAPPER' LIST OF EXHIBIT P1 PROPERTY ISSUED FROM EDAPPALLY SOUTH VILLAGE BEARING NO.6180/04 DTD. 24/11/04. EXT.P4: COPY OF PETITION IN O.S.597/02 FILED BY THE RESPONDENT ON 24/05/04. EXT.P5: COPY OF VALUATION STATEMENT FILED BY THE PETITIONER IN O.S.597/02 OF SUB COURT, ERNAKULAM DTD. 29/03/05. EXT.P6: COPY OF OBJECTION FILED BY THE 3RD RESPONDENT TO EXHIBIT P5 DTD. 19/05/03. EXT.P7: COPY OF ORDER PASSED BY SUB COURT, ERNAKULAM IN O.S.597/02. EXT.P8: COPY OF COMMISSION REPORT FILED BY COMMISSIONER IN I.A.4027/02 IN O.S.597/02 DTD. 17/10/02. EXT.P9: COPY OF ORDER IN WP(C) 33006/05 DTD. 09/01/06. /TRUE COPY/ Kss M.N.KRISHNAN, J. ----------------------------- WP(C)No.22291 OF 2006 D ----------------------------- Dated this the 5th June, 2007. JUDGMENT This writ petition is filed seeking to quash Ext.P7 order passed by the II Additional Sub Judge, Ernakulam in O.S.597/2002. Invoking the power under Section 19 of the Kerala Court Fees & Suits Valuation Act 1959 the court below has appointed a commissioner to report value of the property on the date of suit and its nature (as to agricultural or not). Highly aggrieved by the said decision, the plaintiffs in the suit has come up with this writ petition. Learned counsel for the writ petitioner contends before me that it is a futile attempt on the part of the court to appoint a commissioner at this stage to value the property and to find out the nature of the property. But the learned counsel himself submits that immediately after institution of the suit a commissioner was appointed for other purpose and had seen the nature of the property and the lie of the property as on that date. There is considerable difference regarding the payment of court fee when it is an agricultural land and when it is not an agricultural land. When an enquiry is to be conducted by the court regarding the correctness of the provision under which court fee has to be paid, basic WPC 22291/06 2 materials are necessary for the court. So, in order to satisfy the conscience of the court there is nothing wrong in the court appointing a commissioner to find out the nature of the property. Since a commissioner has already inspected the property, it is only just and correct to depute the very same commissioner, if possible, to inspect the property and furnish the details as required by the court below. The writ petitioner will be certainly at liberty to raise objections to the commissioner's report and if it is substantiated the matter has to be decided in accordance with law by the court below. Therefore, with these observations and modifications 'if possible that the same commissioner be appointed', writ petition is dismissed. M.N.KRISHNAN Judge jj