IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 WP(C).No. 3238 of 2009(I) ------------------------- OS.1244/2008 of I ADDL.SUB COURT, THRISSUR .................... PETITIONER: --------------- MUHAMMADALI, AGED 72, S/O. CHERUVAYIL MUHAMMED @ SAVOOTTY, MANKARA DESOM, ENKAKAD VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. MR. G.SREEKUMAR (CHELUR) RESPONDENTS: --------------- 1. UMMAR, S/O. CHATHAMKOTTIL MANI, ENKAKKAD VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. JAMAL, S/O. CHATHAMKOTTIL MANI, ENKAKKAD VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. 3. CHATHAMKOTTIL MANI @ MUHAMMED, ENKAKKAD VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT. ADV. MR. P.BHASKARAN FOR R2-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)3238/2009 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- A TRUE COPY OF THE PLAINT IN O.S.1244/08 DT. 1.9.08 ON THE FILE OF SUB COURT, THRISSUR. EXT.P2:- A TRUE COPY OF IA.6717/08 IN OS.1244/08 DT.1.9.08 ON THE FILE OF SUB COURT, THRISSUR. EXT.P3:- A TRUE COPY OF THE INJUNCTION ORDER PASSED IN IA. 6717/08 IN OS.1244/08 DT.5.9.08 EXT.P4:- A TRUE COPY OF THE FIRST COMMISSIONER'S REPORT IN IA.6719/08 IN OS. 1244/08 ON THE FILE OF SUB COURT DT.20.9.2008 EXT.P5:- A TRUE COPY OF THE SECOND COMMISSIONER'S REPORT AND PLAN IN IA.7343/08 IN OS.1244/08 ON THE FILE OF SUB COURT, THRISSUR DT. 6.11.2008 EXT.P6:- A TRUE COPY OF IA.7345/08 IN EXT.P1 SUIT DT. 7.10.08 EXT.P7:- A TRUE COPY OF I.A.7989/08 IN EXT.P1 DT. 25.10.2008 EXT.P8:- A TRUE COPY OF IA. 7963/08 IN EXT.P1 DT. 1.11.08 EXT.P9:- A TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER TO EXT.P8 DT. 15.11.08 EXT.P10:- A TRUE COPY OF THE ORDER PASSED BY THE SUB JUDGE IN I.A.7963/08 IN I.A. 7343/08 IN O.S.1244/08 DT. 8.1.09 RESPONDENT'S EXHIBITS:- NIL Okb - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- W.P.(C).No.3238 OF 2009 -------------------------------------------------- Dated this the 25th day of February, 2009 J U D G M E N T Plaintiff in O.S. 1244 of 2008 on the file of Sub Court, Thrissur is the petitioner. Defendants are the respondents. This petition is filed under Article 227 of Constitution of India challenging Ext.P10 order passed in Ext.P8 application filed by respondents 2 to 4 under section 151 of Code of Civil Procedure. Under Ext.P10 order learned Sub Judge allowed Ext.P8 application and directed to issue a letter to the Village Officer to give necessary assistance to the Advocate Commissioner to measure the property. 2. Learned counsel appearing for petitioner and respondents were heard. 3. An Advocate Commissioner was originally appointed by the Court. The Commissioner submitted Ext.P4 report and plan. Thereafter, alleging that respondents have violated the order of injunction, petitioner filed Ext.P7 application for taking action for violation of the order of injunction and another W.P.(C) .3238/2009 2 application to appoint a commission. Commission was appointed. Before the commissioner, respondents filed a work memo. Under the said work memo, respondents sought to measure the property with the assistance of the Village Officer. Commissioner submitted Ext.P5 report and plan. In Ext.P5 report, in answer to item (6) of the work memo, commissioner reported that for measuring the property assistance of the Village Officer is necessary. The commissioner returned the warrant along with Ext.P5 report. Thereafter Adv. Smitha, who submitted the report is not a commissioner in the suit. Ext.P8 application is not to remit Ext.P5 report to file a further report after measuring the property in accordance with the work memo. Instead it was only an application for a direction to the Village Officer to give assistance to the commissioner. Unfortunately learned Sub Judge did not take note of the fact that there is no commissioner to be given assistance as directed by Ext.P10 order. Unless a fresh commission is appointed or Ext.P4 or P5 report is remitted back to the commissioner to file a further report, the direction under Ext.P10 order cannot be issued. Therefore Ext.P10 order is W.P.(C) .3238/2009 3 quashed. Respondents are at liberty to seek remission of the report, if the property is to be identified and measured as sought for in the work memo filed earlier. Learned counsel appearing for petitioner submitted that in spite of Ext.P7 application, learned Sub Judge is not passing order therein. Learned Sub Judge is directed to dispose Ext.P7 application expeditiously. M. SASIDHARAN NAMBIAR, JUDGE okb