IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 8110 of 2009(O) ------------------------- OS.573/2008 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------- 1. THOMAS PAUL @ TOMY, S/O PAILY, RESIDING AT ARAMBANKUDIYIL HOUSE, KEERAMPARA KARA,KEERAMPARA VILLAGE. 2. JOSE PAUL, S/O. PAILY, RESIDING AT ARAMBANKUDIYIL HOUSE, NJAYAPILLY.P.O., KUUTAMPUZHA VILLAGE. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.SAIGI JACOB PALATTY RESPONDENT(S): --------------- 1. FRANCIS, S/O URUMEES, RESIDING AT KALLELIVEETTIL,NAYARANGADY DESOM, KODASERRY VILLAGE,MUKUNDAPURAM TALUK,NOW WORKING AT U.A.E., REP.BY POWER OF ATTORNEY HOLDER SRI.KALATHIL GEORGE @ BABU,RESIDING AT KALATHIL(H),NEHRU TROPHY WARD,AVALKUNNU.P.O.,THEKKARAYANDU VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. 2. ALICE GEORGE,W/O LATE GEORGE, ARAMBANKUDIYIL HOUSE, RAMALOOR.P.O.,KOTHAMANGALAM. ADV. SRI.THOMAS ABRAHAM FOR R1 SRI.DIPU.R FOR R1 SMT.MERCIAMMA MATHEW FOR R1 SRI.K.S.HARIDAS FOR R1 SRI.V.RENJITH KUMAR FOR R1 SRI.SHAJI P.CHALY FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 8110/09 APPENDIX PETITIONERS' EXHIBITS: EXT.P1: COPY OF THE REPORT ALONG WITH A ROUGH SKETCH DATED 5.12.2008. EXT.P2: COPY OF THE INTERLOCUTORY APPLICATION DATED 19.12.2008. EXT.P3: COPY OF THE ORDER PASSED IN IA NO.16/2009 IN OS NO.73/2008 ON THE FILE OF THE COURT OF THE MUNSIFF OF MUVATTUPUZHA DATED 9.1.2009. EXT.P4: COPY OF THE MEMO ISSUED BY THE ADVOCATE COMMISSIONER JAMES MANUEL DATED 5.3.2009. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------- W.P.(C).No.8110 of 2009 ---------------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The Writ Petitioners, who are defendant Nos.1 and 2 in O.S.No.573 of 2008, on the file of the court of the Munsiff of Muvattupuzha, are aggrieved by the order passed by the court below appointing a Commissioner other than the first Commissioner for inspection of the property in accordance with survey. 2. The suit was filed by the first respondent for fixation of boundary. In the written statement, the first defendant disputed the title and possession of the plaintiff. Advocate Basil Paulose was appointed by the court below as the Commissioner. He filed Ext.P1 report and rough sketch dated 5.12.2008 It is submitted by the counsel for the petitioners that none of the parties have filed any objections to the Commissioner’s report and there is no complaint against Advocate Basil Paulose. No application was filed by any of the parties to set aside or to remit the Commissioner’s report. 3. I.A.No.16 of 2009 was filed by the plaintiff for appointing a Commissioner to note the particulars mentioned in the Commission application. It was also prayed that the Taluk surveyor WPC No.8110/2009 2 may also be appointed to assist the Commissioner. That application was filed on 19.12.2008. It came up for hearing on 9.1.2009. The prayer made by the Writ Petitioners for filing objections in the I.A. was rejected. On the same day, the court below passed Ext.P3 order appointing a Commissioner to measure out the property in accordance with the survey with necessary assistance by the Taluk surveyor. Ext.P4 notice issued by the Advocate Commissioner is produced by the petitioners to show that Advocate James Manuel was appointed as a Commissioner. 4. The objection raised by the Writ Petitioners is that the court below should have appointed Advocate Basil Paulose as the Commissioner since he was the first Commissioner who filed Ext.P1 report. There is no reason to appoint another Commissioner. The learned senior counsel appearing for the petitioners relies on the decision reported in Swami Premananda Bharathi vs. Swami Yogananda Bharathi and another (1985 KLT 144) in support of the contention that without setting aside the report and plan of the earlier Advocate Commissioner, the court cannot appoint another Commissioner. The counsel also submitted that no opportunity was given to the petitioners to file work memo before WPC No.8110/2009 3 the Commissioner. The learned counsel appearing for the respondents submitted that none of the parties did raise any objection to the appointment of Advocate Basil Paulose. But, the court below thought it fit to appoint Advocate James Manuel as the Commissioner. It is also submitted that the decision reported in Swami Premananda Bharathi vs. Swami Yogananda Bharathi and another (1985 KLT 144) would not apply to the facts and circumstances of the case. The learned counsel appearing for the respondents submitted that the purpose of inspection which is sought as per Ext.P2 is different from the purpose of inspection which was sought on the earlier occasion, that is, at the time when the suit was instituted. An urgent inspection of the property was necessary and for that purpose Advocate Basil Paulose was appointed. The counsel pointed out that there is no illegality in appointing another Commissioner for inspecting the property with the assistance of the Taluk surveyor, for identifying the property and finding out the boundaries in accordance with survey and title deeds. 5. The report submitted by the Commissioner would be evidence in the case as provided under Rule 10 of Order 26 of the WPC No.8110/2009 4 Code of Civil Procedure. Ext.P1 is one such evidence. Now another Commissioner is appointed for the purpose of inspection. He may submit the report which may sometimes be contrary to Ext.P1 report. Then a question would arise as to which report should be accepted on that particular point. To avoid any such contingency, it would be ideal, if the same Commissioner, Advocate Basil Paulose, is appointed, particularly when there is no objection against the report submitted by him or against his conduct or integrity. 6. The Writ Petition is partly allowed. Ext.P3 order is sustained. The court below shall appoint Advocate Basil Paulose and cancel the appointment of James Manuel, as the Commissioner. Both parties would be entitled to file work memo before the Commissioner. No other directions are called for. The Writ Petition is disposed of accordingly. K.T.SANKARAN, JUDGE csl