IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 21738 of 2009(O) -------------------------- I.A.NO.142/2009 IN OS.35/2007 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): ------------------------- 1. BEEVI KUNJU SULEKHA BEEVI, CHARUVILA VEEDU, MARUTHARA, NEAR KUDAVOOR POST OFFICE, PUNNAIKUNNATHU MURI, MELTHONNAKKAL VILLAGE. 2. MOHAMMED KASIM ABDUL VAHAB, H/O.BEEVI KUNJU SULEKHA BEEVI, -DO- -DO- -DO- BY ADV. MR.B.PREMNATH (E) RESPONDENT(S): --------------------------- SALMA BEEVI FATHIMA BEEVI, RESIDING AT RASEENA HOUSE, KEEZHTHONNAKKAL VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.21738 OF 2009 -------------------------- Dated this the 3rd day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To set aside Ext.P2 order passed in I.A No.142/2009 in O.S No.35/2007 on the file of the Munsiff Court, Attingal. ii) Issue an order allowing I.A No.142/2009 in O.S No.35/2007 on the file of the Munsiff Court, Attingal and appoint a new Advocate Commissioner. W.P.(C).No.21738 OF 2009 Page numbers iii) To grant such other reliefs as this Hon'ble Court may deem just and fit in the circumstances of the case. 2. Petitioners are the defendants in O.S No.35/2007 on the file of the Munsiff Court, Attingal. Suit is for declaration and for injunction, and respondent is the plaintiff in the suit. An advocate commissioner appointed by the court initially conducted a local inspection and filed a report. Later, on the application moved by the plaintiff and defendants / petitioners, the same commissioner visited the property and determined the matters sought for by both sides and filed a report. Pursuant thereto the respondent / plaintiff moved an application alleging that the interim injunction granted by the court had been violated by the defendants and applied for the appointment of a commissioner as to the interference and obstruction caused over the pathway, the subject matter involved in the suit in W.P.(C).No.21738 OF 2009 Page numbers respect of which the order of injunction was passed. The court below allowed the commission report and appointed the same commissioner to visit and prepare a report. At that stage the defendants alleging bias against the commissioner sought for changing him by filing an application. The application was objected to by the plaintiff. The learned Munsiff after hearing both sides dismissed the application vide Ext.P2 order. Propriety and correctness of that order is challenged in the petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P2 order, I find no notice to the respondent is necessary and hence it is dispensed with. Perusing Ext.P2 order, I find the learned Munsiff has taken note that no specific W.P.(C).No.21738 OF 2009 Page numbers allegation imputing bias or being partisan to the plaintiff is levelled against the advocate commissioner and also that the earlier report was prepared and filed by him determining the points raised by both the defendant as well as plaintiffs without any objection. The learned Munsiff found no merit in the allegations imputed against the advocate commissioner and so much so, the application moved for removal of the commissioner was dismissed as without merit. After hearing the counsel at length, I find no reason to interfere with the order passed by the learned Munsiff. The commission report after all is only a piece of evidence in a case. Its evidentiary value can be determined if objections are raised by any of the parties to the suit only after examination of the commissioner. So much so, ample opportunity will be provided to the parties of the suit to raise whatsoever their objections against the report prepared by the commissioner. When there is no material to substantiate the apprehension expressed W.P.(C).No.21738 OF 2009 Page numbers by the petitioner that commissioner is partisan and the earlier two reports had been prepared by him in the case, it is only fair and just that the report to be prepared to determine whether there was any violation of the order of injunction also be determined by the same commissioner. I do not find any impropriety or illegality in the order passed by the learned Munsiff whereby right of the petitioner to challenge the report already filed and also the report, which is to be filed after the visit by the commissioner is deferred to for consideration at trial of the suit. 4. The writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv