IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 3503 of 2011(O) ------------------------------------ OS.NO.488/2008 of MUNSIFF COURT,ATTINGAL .................... PETITIONER/PLAINTIFF ---------------------------------------- SASIKALADEVI,D/O.DEVADAS, LEKSHMI NILAYAM,CHIRAYINKEEZHU, SARKARA VILLAGE. BY ADV. SRI.RAJESH. K.RAJU RESPONDENT(S)/ DEFENDANTS 1 & 2/STATE ----------------------------------------------------------------- 1. INDIRA SOMAN,W/O.SOMAN, SREELEKSHMI, ALTHARAMOODU, CHIRAYINKEEZHU.PIN- 695 304. 2. ASSISTANT EXECUTIVE ENGINEER, WATER AUTHORITY AND SUB DIVISION, ATTINGAL.PIN- 695 101. *3. THE HON'BLE MUNSIFF COURT, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.PIN-695 101. *4. THE HON'BLE DISTRICT JUDGE, THIRUVANANTHAPURAM DISTRICT.PIN-695 101. * RESPONDENTS 3 AND 4 ARE DELETED FROM THE ARRAY OF PARTIES VIDE ORDER DATED 27/10/2011. 5. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT.PIN- 695 001. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3503/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 20/11/2010 OF THE HON'BLE MUNSIFF COURT, ATTINGAL. P2 COPY OF THE REPLY DATED 24/09/2011 GIVEN BY THE PUBLIC INFORMATION OFFICER(JUNIOR SUPERINTENDENT) OF HON'BLE MUNSIFF COURT, ATTINGAL. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3503 of 2011 -------------------------------------- Dated this the 27th day of October, 2011. JUDGMENT Grievance of the petitioner is that no panel has been prepared by this Court or the District Court concerned to record evidence as provided under Sub-rule (6) of Rule 4 of Order XVIII of the Code of Civil Procedure (for short, “the Code”) and in such a situation it was not open to the learned Munsiff, Attingal to appoint an Advocate as Commissioner to record the evidence. Learned counsel has placed reliance on the decision of the Supreme Court in Salem Advocates Bar Association, Tamil Nadu v. Union of India (AIR 2005 SC 3353). 2. In that decision, the relevant portion of which is extracted in page No.7 of the paper book the Supreme Court appreciated the practices adopted by some of the High Courts in requiring that the Advocates to be empanelled as Commissioner under Sub-rule (6) of Rule 4 of Order XVIII of the Code should undergo test in the subjects like the Code and the Evidence Act but left it to the High Court concerned to examine that aspect and decide whether such a procedure is to adopted or not. 3. Learned counsel submits that under Sub-rule (6) of Rule 4 of Order XVIII of the Code, the High Court of District Court as the case may be is bound to prepare a panel of Advocates. OP(C)No.3503/2011 2 4. Even as per the submission of the learned counsel no such panel has been prepared by the High Court or the District Court, concerned. If that be so, instance on appointing an Advocate from the panel (which is not so far prepared) to record evidence would only result in delaying the proceeding. Viewed in that line I am inclined to think interference with the order appointing an Advocate Commissioner (at a time when no panel has been prepared by the District Judge) to record evidence is not warranted. The order does not also cause any prejudice to the petitioner. 5. If a panel as referred to in Sub-rule (6) of Rule 4 of Order XVIII of the Code has not been prepared by the District Court, it is open to the petitioner to bring that matter to the notice of the District Court. With the above observation, this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks