IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 30251 of 2009(O) --------------------------------- OS.61/2004 of SUB COURT,NEYYATTINKARA .................... PETITIONER(S): --------------- JUSTIN MARTIN,MUKKOLAKKAL VILAKATH VEEDU PARASSALA VILLAGE,KARUMANOOR DESOM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. KUMARAVELU ASARI,KUMARA RAJ NIVAS, PEROORVILAKAM,KARUMANOOR DESOM,PARASALA VILLAGE. 2. JAINY LOYEE,D/O.SILVYDORAL,MUKKOLAKKAL VILAKATHU VEEDU,PARASSALA VILLAGE, KARUMANOOR DESOM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vdv S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.30251 OF 2009 -------------------------- Dated this the 5th day of November 2009 ------------------------------------- JUDGMENT Petitioners are the appellants in A.S No.101 of 2006 on the file of the Sub court, Neyyattinkara. The above appeal is preferred against the decree and judgment passed in O.S No. 61 of 2004 on the file of the Principal Munsiff Court, Neyyattinkara. Suit was one for permanent prohibitory injunction and it was decreed in favour of the respondents/plaintiffs in the appeal. In the appeal, the petitioners/appellants moved an application for appointment of a commission to ascertain certain matters which were objected to by the respondents/plaintiffs. The learned appellate Judge after hearing both sides dismissed the 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.30251 OF 2009 Page numbers 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. The learned counsel for the petitioner submitted that the reasoning taken by the court below to dismiss the application is factually and legally incorrect. The appellate court has every power to appoint a commission in the appeal and so much so for a fair disposal of the appeal the application for commission moved by the appellants/defendants deserve consideration is the submission of the counsel. The court below went wrong in forming a conclusion that all the matters sought for in the application moved by the appellants had been considered and details collected thereof in the previous commission report on the trial side, according to the counsel. Whatever be the merits of the challenges canvassed by the learned counsel for the petitioners/appellants, after perusing W.P.(C).No.30251 OF 2009 Page numbers Ext.P5 order with reference to other exhibits tendered in the writ petition, I find no impropriety or illegality in the order passed by the learned appellate Judge declining the request of the petitioners/appellants for appointment of a commission in the appeal. But I make it clear that the right of the appellant to canvass any challenges on the merits of the previous report and also requirement of fresh appointment of a commission will be subject to the merit of the appeal preferred by him. Reserving the right of the petitioners to canvass his challenges in the final hearing of the appeal to have a fresh commission after setting aside the previous report, if it suffers from infirmity, writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv