IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 22327 of 2010(O) ------------------------------------------------ AGAINST THE ORDER DATED 7.7..2010 IN IA 909/2010 IN OS.329/2008 of MUNSIFF COURT, PARAVUR .................... PETITIONER(S): -------------------- 1. T.S.RAMACHANDRAN, AGED 57, S/O. SREEDHARAN PILLAI, RESIDING AT CHANDRALAYAM, CHERUKADAPPURAM KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 2. P.C.SOMASEKHARAN, AGED 46, S/O. CHANDRASEKHARAN PILLAI, RESIDING AT PANELIL HOUSE, CHERANALLOOR DESOM, CHERANALLOOR VILLAGE. BY ADV. SRI.K.NARAYANAN (PARUR) SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): ----------------------- 1. PANKAJAKSHI AMMA, S/O. BHAVANI AMMA, VIDANAPPILLY HOUSE, AZHIKARA, VADAKKUMBHAGOM MURI, PARAVUR TALUK, PIN-683 573. 2. SURESH KUMAR, S/O. THANKAPPAMENON, VIDANAPPILLY HOUSE, AZHIKARA, VADAKKUMBHAGOM MURI, PARAVUR TALUK, PIN-683 573. 3. AJITH KUMAR, S/O. THANKAPPAMENON, VIDANAPPILLY HOUSE, AZHIKARA, VADAKKUMBHAGOM MURI, PARAVUR TALUK, PIN-683 573. 4. DINESH KUMAR, S/O. THANKAPPAMENON, VIDANAPPILLY HOUSE, AZHIKARA, VADAKKUMBHAGOM MURI, PARAVUR TALUK, PIN-683 573. ADV. SRI.S.SHYAM FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.22327 OF 2010 PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS.NO.329/08 OF MUNSIFF'S COURT, PARAVUR FILED ON 1.6.08. EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENTS TO EXHIBIT P1 SUIT DATED 29.7.08. EXT.P3 TRUE COPY OF I.A.910/2010 IN OS.NO.329/08 FILED BY THE PETITIONER DATED 31.5.2010. EXT.P4 TRUE COPY OF OBJECTION FILED TO EXHIBIT P3 BY THE RESPONDENTS ON 23.6.2010. EXT.P5 TRUE COPY OF I.A.909/2010 IN O.S.329/08 DATED 31.5.2010 OF MUNSIFF'S COURT, PARAVUR. EXT.P6 TRUE COPY OF OBJECTION TO EXHIBIT P5 FILED BY THE RESPONDENTS ON 23.6.2010. EXT.P7 TRUE COPY OF ORDER IN I.A.NO.909/2010 IN OS.NO.329/08 OF MUNSIFF'S COURT, PARAVUR DATED 7.7.2010. EXT.P8 TRUE COPY OF ORDER IN I.A.910/2010 IN OS.NO.329/08 OF MUNSIFF'S COURT, PARAVUR DATED 7.7.2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// PS TO JUDGE K.M. JOSEPH, J. ----------------------------------------- W.P.(C).NO. 22327 OF 2010 ------------------------------------------ Dated this the 1st October, 2010. JUDGMENT Petitioners challenge Ext.P8. Petitioners are the plaintiffs in a Suit for permanent prohibitory injunction. They filed Ext.P5 Application for appointment of an Advocate Commission, seeking to elicit facts as shown at Serial Nos. 1 to 3 and any other matters which may be required of the Commissioner. The trial court has rejected the Application noting that the Suit was listed on 3.3.2010 and though the petitioners were present, no proof affidavit was filed. Petitioners filed an Application for removal of the case from the list. On 11.3.2010 the plaintiff was examined as PW1 and certain documents were marked. On 20.3.2010, PW2 was examined and the Suit was posted on 24.3.2010 for defendants' evidence and on that day both sides sought adjournment on the ground that the matter has been settled. It is submitted that as per I.A.No.71/2010, the Suit was removed from the list and thereafter WPC.22327/2010 2 the present I.A. was filed. Finding that if the petitioners had any bonafides, the Commission Application should have been filed at the stage of pre-trial steps, and therefore, it is stated that there is no merit in the Application. 2. I heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. Learned counsel for the petitioners pointed out that it may be true that there was some delay, but having regard to the interest of justice, being a Suit for injunction, it is highly necessary that a Commission Report is obtained, measuring out the properties. 3. Per contra, learned counsel for the respondents opposed. He would submit that the matters sought to be elicited may not be necessary for the purpose of the instant Suit and it is only to delay the matter and also for another proceeding and even the properties which are far situated are sought to be roped in an enquiry. Then, the learned counsel for the petitioners would submit that the petitioners may not press for eliciting matters covered by items 2 WPC.22327/2010 3 and 3 in Ext.P5 and, at any rate, in the interest of justice, item No.1 may be directed to be elicited. 4. Having regard to the facts and also having regard to the fact that the Application for appointment of Advocate Commission is dismissed essentially on the ground that the petitioners did not take steps earlier and in that sense, the Court has not exercised jurisdiction to otherwise consider the application for appointment of a Commission, I would think that the mere fact of delay should not stand in the way of the court considering the Application for appointment of a Commission. 5. I take note of the submission of the learned counsel for the petitioners that the petitioners do not seek a Report on items 2 and 3 in Ext.P5 and they seek only a Report in respect of item No.1. In the light of this, I am inclined to allow the Writ Petition. However, it cannot be an unconditional order and I allow the Writ Petition and Ext.P8 shall stand quashed and Ext.P5 Application will stand allowed in so far as it relates to ascertainment of the matter in item WPC.22327/2010 4 No.1 alone, on condition that the petitioners will pay a sum of Rs.2,500/= (Rupees Two Thousand & Five Hundred only) as costs to the counsel for the respondents in this Court within a period of ten days. It is needless to say that if the petitioners do not pay the costs of Rs.2,500/= (Rupees Two Thousand & Five Hundred) and produce a Memo within ten days as aforesaid, the Writ Petition will stand dismissed. Sd/= K.M. JOSEPH, JUDGE kbk. A sum of Rs.2,500/= (Rupees two thousand and five hundred only) is paid to the counsel for the respondents as cost by the counsel for the petitioners vide memo bearing c.f.No.18553/2010 dated 13/10/2010 in compliance of the direction in the judgment dated 01/10/2010 in WP(C) 22327/2010. Sd/= Registrar (Judicial) WPC.22327/2010 5