IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 WP(C).No. 33550 of 2009(O) -------------------------- AGAINST THE ORDER DATED 19/10/2009 IN I.A.952/09 IN IA 10973/06 IN OS.265/1998 of III ADDL. M.C.,THRISSUR .................... PETITIONER(S): --------------- SUMITH KUMAR, S/O.KUMARAN, KOTTEKKAT HOUSE, KOTTEKKAT, KUTTUR.P.O, THRISSUR. BY ADV. SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR RESPONDENT(S): --------------- 1. MADHAVI, W/O.LATE VELUNNY, ILLUTHURUTHY HOUSE, P.O.PUDUKKAD, THRISSUR. 2. RAMESAN, KOTTEKKAD HOUSE, P.J.ANTONY ROAD, MAMANGALAM, EDAPPALLY.P.O, ERNAKULAM. 3. SASIDHARAN, S/O.KESAVAN, KOTTEKKAD HOUSE, P.J.ANTONY ROAD, MAMANGALAM, EDAPPALLY.P.O, ERNAKULAM. 4. VIMALA, W/O.T.C.UNNI (SATHEESH), THARAKKAL HOUSE, KANNAMKULANGARA, KOORKKANCHERY.P.O, THRISSUR. 5. SUJATHA, W/O.P.K.DASAN, PATTAYIL HOUSE, NEAR R.C.CHURCH, P.O.NORTH PARAVUR, ERNAKULAM. 6. SAJEEV, S/O.LATE KESAVAN, KOTTEKKAD HOUSE, P.J.ANTONY ROAD, MAMANGALAM, EDAPPALLY.P.O, ERNAKULAM. 7. THILOTHAMA, W/O.LATE KESAVAN, KOTTEKKAD HOUSE, P.J.ANTONY ROAD, MAMANGALAM, EDAPPALLY.P.O, ERNAKULAM. WPC.33550/09 8. BALAN, KOTTEKKAD HOUSE, NANDIKKARA.P.O, THRISSUR. 9. K.P.PUSHPAVALLI, D/O.LATE PARAMESWARAN, KOTTEKKAD HOUSE, KOTTEKKAD, P.O.KUTTUR, THRISSUR. 10. K.P.USHA, D/O.LATE PARAMESWARAN, KOTTEKKAD HOUSE, KOTTEKKAD, P.O.KUTTUR, THRISSUR. NOW RESIDING AT W/O.SIVAN, MUTHANPARA HOUSE, KADASSERY.P.O, VELLACHIRA, THRISSUR. 11. K.P.VASANTHI, D/O.LATE PARAMESWARAN, KOTTEKKAD HOUSE, KOTTEKKAD, P.O.KUTTUR, THRISSUR. NOW RESIDING AT W/O.SUKUMARAN,THAZHEKKATTIL HOUSE, P.O.CHERAI, ERNAKULAM. 12. T.S.DHANYA, D/O.LATE PARAMESWARAN, KOTTEKKAD HOUSE, KOTTEKKAD, P.O.KUTTUR, THRISSUR. NOW RESIDING AT C/O.SUKUMARAN,THAZHEKKATTIL HOUSE, P.O.CHERAI, ERNAKULAM. 13. K.P.SHEELA, D/O.LATE PARAMESWARAN, KOTTEKKAD HOUSE, KOTTEKKAD, P.O.KUTTUR, THRISSUR. 14. RAJANI, D/O.LATE PARAMESWARAN, KOTTEKKAD HOUSE, KOTTEKKAD, P.O.KUTTUR, THRISSUR. NOW RESIDING AT W/O.ASHOKAN, ELAMTHURUTH HOUSE, P.O.KOZHUKKULLI, THRISSUR. 15. BHASKARAN.E.V, S/O.LATE MADHAVI, ELAMTHURUTH HOUSE, PUTHUKKAD.P.O, THRISSUR. 16. ARAVINDAKSHAN.E.V, S/O.LATE MADHAVI, ELAMTHURUTH HOUSE, PUTHUKKAD.P.O, THRISSUR. 17. SIVADAS.E.V, S/O.LATE MADHAVI, ELAMTHURUTH HOUSE, PUTHUKKAD.P.O, THRISSUR. 18. SUBADRA, D/O.LATE MADHAVI, ELAMTHURUTH HOUSE, PUTHUKKAD.P.O, THRISSUR. 19. E.V.KAUSALYA, W/O.THANKAPPAN, ENGAKKATTIL HOUSE, KARIMPATT THOPP, CHIYYARAM, THRISSUR. 20. E.V.VILASINI, W/O.DIVAKARAN, CHETTUPUZHA HOUSE, P.O.NADATHARA, THRISSUR. 21. E.V.SYAMALA, W/O.SANKARA NARAYANAN, PARAPPURATH HOUSE, PERAMANGALAM, THRISSUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.33550 OF 2009 (O) ----------------------------------- Dated this the 24th day of November, 2009 J U D G M E N T Petitioner is the 4th defendant in O.S.No.265 of 1998 on the file of the III Additional Munsiff Court, Thrissur. The above suit is one for partition, in which, after passing of the preliminary decree, the final decree proceedings are in progress. An Advocate Commissioner deputed by the court after conducting measurement over the property with the assistance of a surveyor prepared a report and plan to facilitate the division of the property in tune with the allotments made to the sharers under the preliminary decree. Petitioner/4th defendant raised objections to the Commission report, in which, among other contentions, it was alleged that the Commissioner was biased and partisan. The learned Munsiff, considering the objections raised and hearing the counsel on both sides after noticing that there are some infirmities in the report, which require correction, remitted WPC.33550/09 2 the report to the Commissioner with direction to measure the property again with the assistance of the village officer and prepare a fresh sketch. Ext.P6 is that order. Challenge raised in the writ petition is that the court below should not have remitted the report and plan to the same Commissioner, but, appointed a new Commissioner to execute the work. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and hence, it is dispensed with. Mere allegation by one of the parties to a suit that the Commissioner deputed to carry out a commission work is biased or that he is under the influence of the opposite party, it is not proper and correct for the court to remove him and appoint a new Commissioner. After all, Commissioner is an officer of the court and he is deputed on behalf of the court to execute a commission to enable and assist the court in resolving the disputed questions arising for adjudication. Unless some material is placed before the court, prima facie, WPC.33550/09 3 satisfying its conscience that the allegations imputed against the Commissioner, who is a practicing advocate of the court, is biased, it is highly unethical and improper to remove him after his appointment for executing the Commission. In the given facts of the case, I find that the petitioner has not placed any material before the court other than raising bald allegations imputing the impartiality of the Commissioner. There is no merit in the writ petition, and hence, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp