IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 WP(C).No. 8874 of 2008(F) ------------------------------------- AGAINST THE ORDER DATED 28/02/2004 IN IA 271/03 IN AS.71/2001 OF III ADDL.SUB COURT, KOZHIKODE ................................................ PETITIONERS: ------------------- 1. REMA K.NAMBOOTHIRI MANGATHYA ILLATH HOUSE, W/O.KESAVAN NAMBOODIRI PEREUVANNA AMSOM, DESOM, KOZHIKODE TALUK. 2. M.G.VINOD, S/O.KESAVAN NAMBOODIRI MANGATHYA ILLATH HOUSE, PEREUVANNA AMSOM, DESOM KOZHIKODE TALUK. 3. M. VISHNU SAJITH S/O.KESAVAN NAMBOODIRI, MANGATHYA ILLATH HOUSE PEREUVANNA AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: ---------------------- 1. NANDAKUMAR, AGED 43 YEARS S/O.DAMODARAN NAIR, NANDA PRIYA HOUSE RESIDING AT THEVARAODIPOTTAYIL PERUVANNA AMSOM DESOM, KOZHIKODE TALUK. 2. O.R.RAMACHANDRAN, AGEED 38 YEARS S/O.RAMAN NAMBOODIRI, SUB EDITOR MATHRUBHOOMI PRESS, KOZHIKODE, NAGARAM AMSOM DESOM KOZHIKODE TALUK. 3. O.R.SHYLAJA, AGED 45 YEARS W/O.MADANGELIMANA KRISHNAN NAMBOODIRI THRISSUR VILLAGE, KOTTAPURAM AMSOM, DESOM THRISSUR DISTRICT. WP(C) NO: 8874/2008 4. KAMALAM, W/O.DAMODARAN, NANDA PRIYA THEVARAODIPOTTAYIL, PERUVANNA AMSOM, DESOM KOZHIKODE TALUK. 5. MEERA, D/O.DAMODARAN, NANDA PRIYA THEVARAODIPOTTAYIL, PERUVANNA AMSOM, DESOM KOZHIKODE TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 8874 OF 2008 = = = = = = = = = = = = = = = Dated this the 17th day of March, 2008. J U D G M E N T This writ petition is preferred against the order of the Subordinate Judge, Kozhikode in I.A.271/03 in O.S.437/97 in A.S.71/01. It is an application for issuance of a Commission. In the appeal originally the judgment and decree was set aside and the matter was remanded back to the trial court against that decision FAO 147/04 was filed and this Court by judgment dated 20.7.07 set aside the order of the appellate court and sent back the case to the appellate court for fresh consideration of the materials. This Court also set aside the order passed by the appellate judge in I.A.271/03 and directed the appellate judge to call for the I.A. and consider it along with the appeal. Or in other words what can be seen from the judgment of this Court is that there was a plan and report marked as Exts.C1 and C2 in the case. This Court held that it is the duty of the appellate court to consider whether Exts.C1 and C2 are liable to be set aside before W.P.C 8874 OF 2008 -:2:- issuing another Commission. It is very clearly seen from paragraph 4 of this Court's judgment that, “So the lower appellate Court ought to have considered whether Exts.C1 and C2 are liable to be set aside. If, thereafter, it finds that a fresh inspection is necessary, it can very well depute a Commissioner from that Court itself.” So this Court made it crystal clear that before issuance of another Commissioner the Court is expected to consider about the acceptability of Exts.C1 and C2 and only if it finds that it is liable to be set aside or cannot be relied upon, a fresh Commission has to be issued. But what the learned Subordinate Judge has done is to the effect that he has issued a fresh Commission for the limited purpose of ascertaining nature of the B schedule pathway. It has to be understood when an appeal is pending before the appellate Court which is hearing the matter where there is already a judgment passed by the trial court relying upon the document produced by the parties and Commissioner's plan and report, if on each stage the Court starts issuing of Commissions it will only lead to total confusion and it is only on account of the same the learned W.P.C 8874 OF 2008 -:3:- Judge of this Court hold that issuance of a fresh Commission has to be considered only if the Court finds that Exts.C1 and C2 are not acceptable or liable to be set aside. Therefore the order passed by the learned Subordinate Judge is not in terms of the directions of the order of remand and therefore it requires interference. The Court shall hear the matter afresh and if it feels that it can be done only in the process of hearing the entire appeal it may do so and when it reaches a stage where it finds that the Commissioner's plan and report relied on by the lower Court are not acceptable then resort to passing an order in I.A.273/07 and thereafter dispose of the matter in accordance with law. I again make it clear that the Court shall comply with the directions given by the judge of this Court in FAO 147/04 and for the said purpose the order under challenge is set aside. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-