IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 10222 of 2010(O) -------------------------- IA NO.4797/2009 IN AS.101/2005 of I ADDL.SUB COURT,THIRUVANANTHAPURAM .................... PETITIONER(S): --------------- YESUDAS, S/O. PONNAN, RESIDING AT TC 39/2292, NEAR SREE PADMANABHA THEATRE, CHALAI, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): --------------- 1. M.L. BABY, W/O. VELUKUTTY, NEAR T.C.39/2241, VRINDAVAN LANE, CHALAI, MANACAUD,THIRUVANANTHAPURAM. 2. THE SECRETARY, THIRUVANANTHAPURAM CORPORATION. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R2 SRI.P.K.MANOJKUMAR FOR R2 SMT.R.RAMYA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.10222/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF JUDGMENT DATED 15.7.2003 IN OS NO.135/2001 ON THE FILE OF II ADDITIONAL MUNSIFF, TRIVANDRUM EXT.P2 TRUE COPY OF COMMISSION REPORT DATED 19.1.2001 IN OS 135/2001 (C1) EXT.P3 TRUE COPY OF COMMISSION REPORT DATED 5.2.2001 MARKED AS C2 IN IA 1004/2001 IN OS 135/2001 EXT.P4 TRUE COPY OF COMMISSION APPLICATION IA NO.4797/2009 IN A.S. 101/2005 BEFORE THE SUB COURT, THIRUVANANTHAPURAM EXT.P5 TRUE COPY OF MEMORANDUM OF APPEAL A.S.NO.101/2005 OF THE DISTRICT COURT, THIRUVANANTHAPURAM EXT.P6 TRUE COPY OF ORDER OF DISMISSAL OF IA NO.4797/2009 IN AS 101/2005 OF THE 1ST ADDL.SUB JUDGE, THIRUVANANTHAPURAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.10222 of 2010 -------------------------------------- Dated this the 19th day of July, 2010. JUDGMENT Petitioner is aggrieved by Ext.P6, order on I.A.No.4797 of 2009 in A.S.No.101 of 2005 of the court of learned Additional Sub Judge-I, Thiruvananthapuram. Petitioner sued respondents for a decree for prohibitory and mandatory injunction. According to the petitioner respondent No.1 has constructed the building in violation of the Building Rules and trespassing into the property petitioner and the pathway being used by petitioner. Trial court dismissed the suit for the reason that the properties are not properly identified with the help of a surveyor. Petitioner preferred A.S.No.101 of 2005. In the appeal petitioner filed I.A.No.4797 of 2009 to appoint an advocate commissioner with the assistance of surveyor to identify the property and report whether there is any violation of Building Rules or encroachment into the property/way claimed by petitioner. Respondent did not file objection to the said application. Learned Sub Judge vide Ext.P6, order has dismissed I.A.No.4797 of 2009, according to learned counsel for petitioner on the premise that there are already two commission reports which are sufficient for the purpose. Learned counsel points out that earlier reports were not survey commission reports. Learned counsel also points out that suit was dismissed for want of proper identification of properties and hence a survey commission was absolutely WP(C) No.10222/2010 2 necessary. Learned counsel for respondent No.1 has supported order under challenge. According to the learned counsel it is not necessary to appoint an advocate commissioner at this stage. 2. Having regard to the facts and circumstances of the case, I am persuaded to think that request for reception of additional evidence, be it in the form of a report of advocate commissioner had to be considered along with the appeal. Proper procedure was to keep the application for commission pending to be heard along with appeal. In case appellate curt thought that a survey commission as pleaded by petitioner was necessary and the case is to be remitted to trial court, the application for appointment of commission also can be remitted to that court for consideration. Fate of the application must follow the result of appeal. In the circumstances I am inclined to set aside Ext.P6, order. Resultantly this Writ Petition is allowed and Ext.P6, order is set aside. It is directed that I.A.No.4797 of 2009 shall be considered by the learned Additional Sub Judge along with the appeal and fate of that application will follow the result of appeal. THOMAS P.JOSEPH, Judge. cks