IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 WP(C).No. 21862 of 2010(O) -------------------------- OS.570/1995 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER(S): --------------- THE ADVOCATE COMMISSIONR, (2ND ADDL. SUB COURT THRISSUR),28/3227,1ST CROSS ROAD, CHERUPARAMBATH ROAD, KADAVANTHARA, KOCHI-20. BY ADV. SMT.RANI JOY RESPONDENT(S): ---------------------- 1. PAUL.S.ATTOKKARAN, KURIACHIRA, THRISSUR 2. LISSY JOHN, ATTKKARAN HOUSE, MISSION QUARTES, THRISSUR. 3. ITHAMMA ATTOKKARAN, ATTOKKARAN HOUSE, GOSAIKUNNU, THRISSUR. ADV. SRI.K.K.JAYASOORIAN FOR R1 SRI.LAL K.JOSEPH FOR R1 SRI.A.A.ZIYAD RAHMAN FOR R1 SRI.V.R.REKESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 21862/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE I.A.NO.1925/2010 IN O.S.NO.507/95 BEFORE THE SECOND ADDL. SUB COURT, THRISSUR. EXT.P2: COPY OF THE REPLY AFFIDAVITDATED 8.3.2010 IN I.A.NO.1925/2010 IN O.S.NO.570/95. EXT.P3: COPY OF THE ORDER IN I.A.NO.1925/2010 IN O.S.NO.570/95 (IMPUGNED ORDER) EXT.P4: COPY OF THE CERTIFICATE DATED 15.7.2010 ISSUED BY THE STATION MANAGER SOUTH RAILWAY STATION, ERNAKULAM JUNCTION. EXT.P5: COPY OF THE CERTIFICATE DATED 15.7.2010 ISSUED BY THE STATION MANAGER, TRICHUR RAILWAY STATION. EXT.P6: COPY OF THE RULE 70 OF THE CIVIL RULES OF PRACTICE. RESPONDENTS' EXHIBITS : EXT.R1(a) : COPY OF THE COMMISSION REPORT DATED 3.8.07. EXT.R1(b) :COPY OF THE OBJECTION DATED 6.2.2010. EXT.R1(c) : COPY OF THE JUDGMENT DATED IN W.P.(C) NO.6929/2007. EXT.R1(d) : COPY OF THE NOTICE ISSUED BY REGISTERED POST ON 2.5.07. EXT.R1(e) : COPY OF THE LETTER DATED 9.5.07. EXT.R1(f) : COPY OF THE POSTAL RECEIPT EXT.R1(g) : COPY OF THE OUTER PAGE CONTAINING THE ADDRESS & POSTAL ENDORSEMENT. EXT.R1(h) : COPY OF THE POSTAL RECEIPT. EXT.R1(i) : COPY OF THE POSTING CERTIFICATE. EXT.R1(j) : COPY OF THE STATEMENT DATED 2.8.07. EXT.R1(k) : COPY OF I.A.NO.285/7 EXT.R1(l) : COPY OF THE NOTICE DATED 23.1.07. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ----------------------------------- W.P.(C).No.21862 of 2010 ------------------------------------ Dated this the 22nd day of June, 2011 JUDGMENT The petitioner was appointed as the Advocate Commissioner in O.S.No.570 of 1995 on the file of the Second Additional Sub Court, Thrissur for partitioning the decree schedule properties. The Commissioner submitted the report. The first respondent -first defendant filed objections to the Commissioner's report. He also filed an application to set aside the Commissioner's report. In support of the application to set aside the Commissioner's report, the first respondent/first defendant wanted to examine the Commissioner as a witness. The Commissioner was summoned to court. He attended the court. However, he could not be examined. The reasons for non-examination need not be stated or considered while disposing of this Original Petition as there is dispute over the same. The court below recorded in the order impugned in this Writ Petition the reasons for non WPC 21862/2010 2 examination of the petitioner. The correctness of the same is challenged and I am of the view that it is not necessary to consider the correctness or otherwise of the same. 2. The petitioner, who is the Advocate Commissioner, has to be examined before court. For that purpose, he has to travel from Ernakulam to Thrissur. The court below in the order dated 29th March 2010, fixed the batta to be paid to the petitioner. 3. The petitioner says that he is entitled to fee per day, the expenses for travel and the expenses for translation of his evidence from English to Malayalam. He also says that English is more familiar to him. Though a Keralite, he had been outside Kerala for the last several years. Therefore, the Commissioner prefers to be examined in English and he also prays for a direction that he may be examined or cross examined in English. 4. The learned counsel for the first respondent submitted that the first respondent has serious objections to the report WPC 21862/2010 3 submitted by the Commissioner and therefore, an application has been filed to set aside the Commissioner's report. If the Commissioner is summoned as a witness before court, he cannot fix his terms and he need be paid only the batta as per the Rules available under the Civil Rules of Practice, Kerala. The first respondent says that he is prepared to pay the batta fixed as per the Rules for the purpose of examination of the Commissioner before court. 5. The petitioner pointed out that he is an advocate and he is also a qualified Engineer. He also submitted that he is aged more than 70 years and one cannot expect him to spend money out of his pocket for the purpose being examined as a witness in court for the benefit of the litigants. 6. The learned counsel for the first respondent submitted that the first respondent is even prepared to examine the petitioner at his residence, by taking out a commission. But the court below has not considered the question whether the WPC 21862/2010 4 petitioner can be examined on Commission or whether his presence before court is required. It is not necessary to consider that aspect in this Writ Petition. 7. After having heard the petitioner and the learned counsel for the first respondent in detail, a suggestion was made to the first respondent that having expressed the readiness to take out a commission to examine the petitioner, why not that much expense at least be incurred for the purpose of procuring the presence of the petitioner before court. The learned counsel appearing for the first respondent consulted the first respondent, who is present in court, and submitted that the first respondent is prepared to pay ` 3,000/- as the travelling expenses and the other expenses of the Commissioner for a day's examination. The petitioner gracefully left the matter to the court and to the discretion of the first respondent. The petitioner submitted that whatever amount is fixed by this court, he would be happy. In the facts and circumstances, in modification of the order passed by the court below, the batta of the petitioner as a Commissioner WPC 21862/2010 5 to be examined in court is fixed at ` 3,000/- per day. The said amount would include the travelling expenses and all other expenses in connection with his examination as a witness before court. The aforesaid batta shall be paid to the Commissioner directly before he is examined as a witness. As regards the batta for two days on which the petitioner attended the court, he shall be paid the batta at the rate fixed by the court below in the order dated 29th March, 2011. In other words, the agreement by the first respondent to pay ` 3,000/- per day's attendance is only for the future attendance. 8. As regards the contention put forward by the petitioner that he is more familiar in English and therefore, his examination should be in English, the learned counsel for the first respondent submitted that the witness can be examined in English and his evidence can be recorded in English. However, the counsel for the first respondent pointed out that certain expressions could not be put in English and for which only Malayalam language can be employed. It is submitted that in WPC 21862/2010 6 such circumstances the petitioner should not be allowed to object to the question if some expressions in Malayalam are also included. The petitioner submitted that he has no objection for the same. These submissions are recorded. As regards the fee for translation, it is not necessary to fix any fee as the petitioner is directed to be examined in English. The Original Petition is disposed of as above. The order passed by the court below is modified to the extent indicated above. K.T.SANKARAN JUDGE csl