IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 WP(C).No. 29128 of 2003(P) ---------------------------------------- PETITIONER(S): ----------------------- 1. SARATHCHANDRAN NAIR, POORADAM, NEDUMPULLY, KUTTAMALA.P.O., AMBOORI, NEYYATTINKARA, TRIVANDRUM. ADDL.PETITIONERS 2 TO 4 IMPLEADED 2. K.V.JALAJAKUMARI, AGED 40, POORADAM,NEDUMPULLY.KUTTAMALA.P.O., AMBOORI, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 3. ANJU J.SARATH, AGED 19, POORADAM, NEDUMPULLY, KUTTAMALA.P.O., AMBOORI, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 4. ANOOP S.NAIR, MINOR, AGED 15, POORADAM, NEDUMPULLY, KUTTAMALA.P.O., AMBOORI, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.BASANT BALAJI SRI.D.SAJEEV, ADDL.PET RESPONDENT(S): -------------------------- 1. BHUVANENDRAN NAIR, S/O.NARAYANA PILLAI, VAZHAVILAKAM, KODUNGANNOR.P.O., VATTIYOORKAVU, TRIVANDRUM. 2. JAYACHANDRAN NAIR, S/O. NARAYANA PILLAI, ASWATHY, V.P.8/1076, KODUNGANOOR.P.O., VATTIYOORKAVU, TRIVANDRUM. 3. GOPAKUMAR, S/O.NARAYANA PILLAI, ASWATHY, ARASUMMOODU, KAZHAKKOOTTOM .P.O., TRIVANDRUM. 4. HARIKUMAR, S/O. NARAYANA PILLAI, SANDHYA BHAVAN, PANAKKARA, KODUNVANOOR .P.O., VATTIYOORKAVU, TRIVANDRU. 5. SASIDHARAN NAIR, S/O.KRISHNA PILLAI, KAPPIVILA PUTHEN VEEDU, KODUNGANOOR.P.O, KULASEKHARAM, ANCHAMADA VILLAGE. R5 BY ADV. SRI.P.A.AHAMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C) NO.29128/2003 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MORTGAGE DEED DTD.27/8/1951 IN THE NAME OF ONE VASUDEVAN AND HIS WIFE SMT. VASUMATHI. P2 COPY OF THE PARTITION DEED NO.158 DATED 16/1/1954. P3 COPY OF THE RELEASE DEED DATED 26/9/1966. P4 COPY OF THE DOCUMENT DTD.6/7/1978. P5 COPY OF THE COMMISSION APPLICATION DATED 6/8/2003 APPLIED BY THE PETITIONER. P6 COPY OF THE ORDER DTD.1/9/2003 IN O.S.NO.1134/2000 ON THE FILE OF THE MUNSIFF COURT, TRIVANDRUM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 29128 OF 2009 ------------------------------- DATED THIS THE 6TH DAY OF JANUARY, 2011 JUDGMENT This writ petition is filed seeking the following reliefs. “(a) That all records relating to Ext.P6 be called to this Court and a writ of certiorari or other order be passed setting aside Ext.P6 order. (b) That a writ of mandamus or other order be passed directing the Munsiff's Court, Trivandrum to allow Ext.P4 commission application.” 2. The plaintiffs in O.S.No.1134/2000 on the file of the Munsiff's Court, Trivandrum is the petitioner. The suit was filed for a declaration that the decree; in O.S.No.1443/78 on the file of the Munsiff's Court, Trivandrum is not binding on the plaintiff and his right over 1/5th share in the plaint schedule property and for partition of the same. The specific case of the petitioner/plaintiff is that the property obtained by the father of the 5th respondent and the property obtained by the father of the petitioner are entirely -2- WP(C).No.29128/2003 different and that the decree in O.S.No.1443/78 is fraudulently obtained regarding a portion of the property of the petitioner's father, which the 5th respondent can never claim. According to the petitioner, the 5th respondent can claim right only over the property of his father Sri Krishna Pillai. Therefore, the plaintiff pleaded that the identification of both the properties is absolutely necessary for proper adjudication of the dispute involved in the present suit. It is also pointed out that the court blow framed issue No.3 which reads as follows: “Whether specification and identity of the plaint schedule property vide in the plaint is correct.” After referring to the said issue the learned counsel also pointed out that the aforesaid issue in the suit can be decided in the suit only if there is a commission report and plan. It is submitted that the court below has committed serious jurisdictional error in rejecting the commission application. It is also submitted that the dismissal of the commission application was, which has the effect of practically dismissing the suit itself, on an appreciation of the contentions -3- WP(C).No.29128/2003 raised by the plaintiff in the suit. 3. I have gone through the reasons stated by the court below in Ext.P6 order. No reasons practically are stated by the court below for dismissing the commission application. It is stated in Ext.P6 order that I have gone through the averments in the plaint and that considering the averments in the plaint and the relief sought by the plaintiff, I am of the view that the appointment of a commissioner as claimed in this petition is not at all necessary for the determination of the suit. I have referred to the contentions of the plaintiff and issue No.3 framed in the suit in the preceding paragraphs. The deputation of the commissioner for the purpose of identification of property is absolutely necessary for a proper adjudication of the case and if the application for issuance of a commissioner for identification of the property is not allowed, serious prejudice will be caused to the plaintiff. Therefore, I set aside the impugned -4- WP(C).No.29128/2003 order (Ext.P6) and I.A.No.7137/2003 is allowed. There will be a direction to the court below to depute a Commissioner for ascertaining the matters in I.A.No.7173/2003. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv.