IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 1090 of 2010(O) ------------------------- AGAINST THE ORDER DATED 26/10/2009 IN IA.2793/2009 IN OS.630/2007 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER(S):DEFENDANTS: ---------------------------------------------- 1. SUNIL, S/O.MACHAT PUSHPAN, GANDHIGRAM DESOM, IRINJALAKUDA VILLAGE/PO, THRISSUR REPRESENTED BY POWER OF ATTORNEY BINI, W/O.SUNIL MACHAT, -DO- -DO- 2. SUSHEELKUMAR, S/O.MACHAT PUSHPAN, GANDHIGRAM DESOM, IRINJALAKUDA VILLAGE/PO, THRISSUR REPRESENTED BY POWER OF ATTORNEY PRABHAVATHY,W/O.PUSHPAN MACHAT, -DO- -DO- BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): PLAINTIFF: ---------------------------------------------- RAVEENDRANATHAN, S/O.MACHAT MANIKYAN, IRINJALAKUDA VILLAGE/PO, THRISSUR, PIN - 680 121. (IDENTITY DISPUTED) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.1090 OF 2010 -------------------------------- Dated this the 13th day of January 2010 ---------------------------------------------------------- JUDGMENT Petitioners are 1st and 2nd defendants in O.S No.630 of 2007 on the file of Sub Court, Irinjalakuda. Suit is one for recovery of possession, and the respondent is the plaintiff. Resisting the suit claim, the petitioners/defendants have filed a written statement in which among other contentions a claim for valuing improvements, it is submitted by the counsel, has been set up canvassing a case that the petitioners continue in possession and enjoyment of the plaint property under a lease arrangement. Petitioners/defendants had moved an application for appointment of an advocate commissioner to assess the value of improvements which was objected to by the respondent/plaintiff. The learned Sub Judge after hearing both sides dismissed that application vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No. 1090 OF 2010 Page numbers 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and perusing Ext.P5 order with reference to other exhibits tendered in the writ petition, I find no notice to the respondent is necessary, and it is dispensed with. Learned counsel for the petitioners fairly submitted that the trial of the case is in progress, as included in the published special list on 7th of this month. That being so, I find it is not proper and appropriate for this court to examine the propriety and correctness of Ext.P5 order challenged in the writ petition invoking the visitorial jurisdiction vested with this court. However, the learned counsel for the petitioner inviting my attention to paragraph 4 of Ext.P1 copy of the plaint submitted that even the plaintiff has no case that the defendants are rank trespassers, but the court below while passing Ext.P5 order has made some observations in those lines and it is likely to cause prejudice to the defendants in substantiating their defence raised in their written statement to resist the claim. I find some force in the submission made by the learned W.P.(C).No. 1090 OF 2010 Page numbers counsel. The learned Sub Judge is directed to consider and dispose of the suit untrammelled by any of the observations made in Ext.P5 order dismissing the commission application of the petitioners/defendants. I also make it clear that it is open to the petitioners/defendants to raise whatever challenges on the basis of the defence advanced by them in the suit, and in case a decision is entered against them in the suit the impugned order can be assailed in the appeal against the decree as provided by law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv W.P.(C).No. 1090 OF 2010 Page numbers