IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 OP(C).No. 817 of 2010(O) AGAINST THE ORDER DATED 23/09/2010 IN IA.2250/2008 IN OS.84/2007 OF MUNSIFF'S COURT, PUNALUR PETITIONER --------------------- VIJAYAN NAIR, PANACHUVILAKATHU VEEDU, CHIRAYINKEEZHU DESSAM, SHARKKARA VILLAGE, CHIRAYINKEEZHU TALUK. BY ADV. SRI.B.KRISHNA MANI RESPONDENT: --------------- MOHANAN, RATHEESH BHAVAN, FROM ANAKULAM PUTHENVEETTIL, DALIKKARAYIL, KULATHUPUZHA VILLAGE, PATHANAPURAM TALUK-691310. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT O.S.NO.84/07 BEFORE THE MUNSIFF'S COURT, PUNALUR. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 6.11.2007 IN O.S.NO.84 OF 2007 BEFORE THE MUNSIFF'S COURT, PUNALUR. EXT.P3 TRUE COPY OF THE APPLICATION I.A.NO.2250/08 IN O.S.NO.84/07 BEFORE THE MUNSIFF'S COURT, PUNALUR. EXT.P4 TRUE COPY OF THE INTERIM REPORT I.A.NO.2250/08 IN O.S.NO.84/07 BEFORE THE MUNSIFF'S COURT, PUNALUR , SUBMITTED BY THE COMMISSIONER. EXT.P5 TRUE COPY OF THE ORDER DATED 23.9.2010 IN I.A.NO.2250/08 IN O.S.NO.84/07 BEFORE THE MUNSIFF'S COURT, PUNALUR. EXT.P6 TRUE COPY OF THE CASE SUMMARY AND DISCHARGE RECORDS ISSUED BY THE SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM. EXT.P7 TRUE COPY OF THE REGISTRATION CARD DATD 23.7.2010 ISSUED BY THE SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM. EXT.P8 TRUE COPY OF THE REPORT DATED 24.7.2010 ISSUED BY THE SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM. EXT.P9 TRUE COPY OF THE CERTIFICATE DATED 27.10.2010 ISSUED BY THE SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 817 OF 2010 O ------------------------------------------------------ Dated this the 10th day of February, 2011 JUDGMENT Though notice was served on the respondent, there is no appearance. 2. The petitioner, the plaintiff in O.S.No.84 of 2007 on the file of the Munsiff's Court, Punalur, is aggrieved by the order dated 23.8.2010 (Ext.P5), by which, the court below dismissed the application filed by the plaintiff for appointing a Commissioner. 3. The Commissioner was appointed on the application filed by the plaintiff. The Commissioner filed an interim report stating that the plaintiff did not co-operate with the inspection scheduled to be held on 20.6.2010 and 1.8.2010. The court below, relying on the interim report filed by the Commissioner, dismissed the application for appointing a Commissioner. 4. It it stated that the petitioner was undergoing treatment for O.P.(C) NO.817 OF 2010 O :: 2 :: cardiac problems at Sree Chitra Tirunal Institute of Medical Science and Technology. It is stated that he underwent angiogram on 18.10.2010 and he was advised for angioplasty. It is also stated that the petitioner was away in Thiruvananthapuram at the relevant time and therefore, he could not make necessary arrangements for accompanying the Commissioner. For the same reason, the petitioner/plaintiff could not be present on the dates when the Commissioner proposed to inspect the property. 5. In the peculiar facts and circumstances of the case, I am of the view that an opportunity should be given to the petitioner to take out a Commission. Accordingly, the order dated 23.9.2010 in I.A.No.2250 of 2008 is set aside. The Commission application shall stand allowed. The Commissioner shall inspect the property after giving notice to both parties. Learned counsel for the petitioner undertakes that the petitioner will co-operate with the Commissioner and that he will not create any room for any complaint of non-co- operation. It is also submitted that by some chance, if the petitioner is not physically able to accompany the Commissioner to the property, the petitioner will make necessary arrangements so that O.P.(C) NO.817 OF 2010 O :: 3 :: somebody else on his behalf would do the needful to ensure that the Commissioner would be able to inspect the property. The Original Petition is allowed as above. (K.T.SANKARAN) Judge ahz/