IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 5800 of 2010(O) ------------------------- IA NO.9744/2009 IN OS.315/2006 of PRINCIPAL SUB COURT,THIRUVANANTHAPURAM .................... PETITIONER(S): --------------- MARY GEORGE THALIATH, AGED 72 YEARS, 'MARY KNOLL' BUNGLOW, KURUVANKONAM, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) RESPONDENT(S): --------------- 1. GEEJA @ REMA, STAFF OF CORPORATION OF TRIVANDRUM, RESIDING ON THE WEST OF 'MARY KNOLL', KURAVANKONAM, THIRUVANANTHAPURAM. 2. CORPORATION OF THIRUVANANTHAPURAM, REP. BY THE SECRETARY. ADV. SRI.M.SREEKUMAR FOR R1 SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R2 SRI.P.K.MANOJKUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.5800/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 315/2006 OF SUB COURT, TRIVANDRUM EXT.P2 TRUE COPY OF WRITTEN STATEMENT OF IST DEFENDANT EXT.P3 TRUE COPY OF WRITTEN STATEMENT OF 2ND DEFENDANT EXT.P4 TRUE OPY OF COMMISSION REPORT DATED 20.7.2006 BY ADV.A.MANOHARAN EXT.P5 TRUE COPY OF LETTER DATED 17.12.2009 GIVEN ON BEHALF OF PETITIONER EXT.P6 TRUE COPY OF AFFIDAVIT AND PETITION IN IA NO.9747/2009 EXT.P7 TRUE COPY OF AFFIDAVIT AND PETTION IN IA NO.9744/2009 EXT.P8 TRUE COPY OF OBJECTION OF R1 EXT.P9 TRUE COPY OF ORDER DATED 30.1.2010 IN IA 9744/2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.5800 of 2010 -------------------------------------- Dated this the 26th day of July, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P9, order rejecting prayer of petitioner/plaintiff to depute an Advocate Commissioner to ascertain oldness and present condition of a disputed compound wall with the help of a technical expert. Petitioner sued respondents for a decree for prohibitory injunction to restrain them from demolishing existing compound wall (plaint B schedule) and for other reliefs. Respondents contended that the compound wall was in a dilapidated condition and that petitioner reconstructed it without permission of respondent No.2. In the course of the suit Advocate Commissioner inspected the property and has submitted a report. After learned Sub Judge started recording evidence in the case petitioner came with Ext.P7, application to depute an Advocate Commissioner assisted by a technical expert for the purpose stated above. That application was opposed by respondents. Learned Sub Judge vide Ext.P9, order has dismissed the application observing that only point for decision is whether petitioner has reconstructed the compound wall without obtaining sanction from respondent No.2 and that matters sought to be ascertained as per Ext.P7, application are not relevant for a decision of the case. Holding so Ext.P7, application was dismissed. Learned counsel for petitioner contends that in the nature of contentions raised by respondents it is necessary to ascertain present condition and oldness of the disputed compound wall WP(V) No.5800/2010 2 through Advocate Commissioner assisted by a technical expert. Learned counsel for respondent No.1 contends that in so far as there is already a report submitted by the Advocate Commissioner it is not possible to call for another report without setting aside the first report. Reliance is placed on the decision in Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144). 2. The decision relied on by learned counsel states that without setting aside report of first Commissioner it is not possible to call for a second report. But that decision can be distinguished on facts of the case. If the matter sought to be ascertained through second Commissioner is a matter which the first commissioner has not ascertained, it is competent for the court to depute a second commission. In Sivaraman v. V.C.Narayanan (AIR 1987 Kerala 156) it is held that it is not correct to say that under no circumstance court can issue a second commission without setting aside the first report. In this case condition and oldness of the disputed compound wall, it is not disputed by either side was not ascertained and reported by the first Advocate Commissioner. In otherwords it is not a matter which was touched by first Commissioner that is now sought to be ascertained by the second commissioner. That is not prohibited under law. Hence objection raised by learned counsel for respondent No.1 in that line cannot be sustained. WP(V) No.5800/2010 3 3. It is not disputed that respondent No.2 has a contention that compound wall was in dilapidated condition and that petitioner reconstructed it without obtaining permission from it and hence the said construction violated the law in force. In view of that contention it is relevant to ascertain condition of the compound wall and its oldness. I am unable to agree with the finding entered by learned Sub Judge that the matters required to be ascertained through Ext.P7 are wholly irrelevant for a decision in the matter. Having regard to the facts and circumstances of the case, notwithstanding that Ext.P7, application is at a highly belated stage I am inclined to allow the request since what is required to be brought on record through Advocate Commissioner is relevant for a decision of the case. Resultantly this Writ Petition is allowed in the following lines: i. Ext.P9, order is set aside and I.A.No.9744 of 2009 in O.S.No.315 of 2006 of the court of learned Principal Sub Judge, Thiruvananthapuram is allowed. ii. Learned Principal Sub Judge shall as far as possible appoint the same Advocate Commissioner who has already submitted report, with the assistance of a technical expert to be appointed by the learned Sub Judge to inspect the property and report on the matters sought for in Ext.P7, application. WP(V) No.5800/2010 4 iii. Batta payable to the Advocate Commissioner and Technical Expert shall be decided by the learned Sub Judge having regard to the volume of work required to be done. THOMAS P.JOSEPH, Judge. cks