IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 WP(C).No. 1006 of 2009(T) ------------------------- AGAINST THE ORDER DATED 29/11/2008 IN IA 2302/08 IN OS.439/2008 OF SUB COURT, ALAPPUZHA .................... PETITIONER(S): --------------- SANATHANA DHARMA VIDYALAYA BOARD OF TRUSTEES, ALAPPUZHA - 1, REPRESENTED BY ITS PRESIDENT, S.MAHADEVA IYYER. BY ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): --------------- 1. V.K.SASINDRANATHA KURUP, S/O.V.N.BALAKRISHNA PILLAI, AJAYA NIVAS, CHATHANAD, ALAPPUZHA. 2. C.VINOD, S/O.V.K.CHANDRASEKHARA KURUP, RESIDING AT VEDIYATHU HOUSE, MARARIKULAM NORTH P.O., ALAPPUZHA. ADV. SRI.K.N.VENUGOPALA PANICKER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 1006/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN OS NO.439/2008. EXT.P2: COPY OF I.A.NO.2014/08. EXT.P3: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER. EXT.P4: COPY OF THE MAHASAR OF ADVOCATE COMMISSIONER. EXT.P5: COPY OF I.A.NO.2302/2008. EXT.P6: COPY OF OBJECTION FILED BY THE PETITIONER/2ND DEFENDANT. EXT.P7: COPY OF THE ORDER IN IA NO.2302/2008 IN OS NO.439/2008 DATED 29.11.2008. RESPONDENTS' EXHIBITS: EXT.R1(a): COPY OF THE TERMS OF COMPROMISE DATED 23.8.2008. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.1006 of 2009 --------------------------------------------- Dated this the 18th day of March, 2009 JUDGMENT The second defendant in O.S.No.439 of 2008, on the file of the court of the Subordinate Judge, Alappuzha, challenges in this Writ Petition the order dated 29th November 2008 in I.A.No.2302 of 2008 by which the court below appointed a Commissioner to ascertain whether a press is functioning in the building in question. 2. I.A.No.2302 of 2008 is an application for injunction filed by the plaintiff. At the time of hearing of that application, it was contended by the plaintiff that he should be permitted to bring machinery, tools etc. for working the press in the building. The defendant opposed that prayer and contended that no press is functioning in the building. In view of the diametrically opposite contentions raised by the parties, the court below thought to elucidate the matter in controversy, it is necessary to appoint a Commissioner, so as to get a report on the relevant question. Accordingly, a Commissioner was appointed. That order is under challenge in this Writ Petition. Sri.Anand, learned WPC No.1006/2009 2 counsel appearing for the Writ Petitioner submitted that the court below was not justified in appointing a Commissioner without there being an application filed by the plaintiff. He also submitted that a Commissioner was appointed earlier (Advocate P.V.Thomas) and he has filed Ext.P4 report. The counsel contends that without setting aside the Commissioner’s report submitted by Advocate P.V.Thomas, another Commissioner cannot be appointed. He relies on the decision reported in Swami Premananda Bharathi vs. Swami Yogananda Bharathi (1985 KLT 144) in support of the contention. That was a case without setting aside the first Commissioner’s report in a suit for framing a scheme for administration of the Trust, another Commissioner was appointed in the appeal against the judgment and decree. The Division Bench held that the procedure adopted by the trial court was wrong. The dispute in that case was relating to the accounts. A Commissioner was appointed who filed a report. Later without setting aside that report, another Commissioner was appointed. In the present case, the facts and circumstances are not similar to the facts and circumstances in 1985 KLT 144. In Sivaraman Vs. Narayanan WPC No.1006/2009 3 (1986 KLT 578), it was held that the court has jurisdiction to appoint the Commissioner to note things which he omitted to note in the report already filed, even without setting aside that report. That view was accepted by this Court in several later decisions. 3. Here the Commissioner has filed a report. The report would indicate that a press is being run in the building in question. In the present application for injunction, the petitioner/plaintiff sought the permission to bring some machinery to the press. Opposing that prayer, the defendant stated that there is no such press in the building. This is not a case where the court is remitting the Commissioner’s report to the same Commissioner dissatisfied with the report already filed. There is no such prayer also. This is a situation where the present position as regards the property in dispute is to be ascertained since there is a dispute as to the status quo. For that purpose, the court below thought that a Commissioner is to be appointed. It is not based on any application filed by the parties. A Commissioner was appointed by exercising the jurisdiction vested in the court. The court has jurisdiction to WPC No.1006/2009 4 appoint a Commissioner, if the court feels that for an effectual and complete disposal of the matter before it, elucidation of certain facts are necessary. The court below having exercised the jurisdiction vested in it, I do not think that the order is liable to be set aside. 4. Sri.Anand submitted that the court below should have appointed the same Commissioner who inspected the property earlier. The order does not show that a particular Commissioner was appointed. However, it is made clear that the court below shall appoint Advocate P.V.Thomas as the Commissioner. Both parties would be entitled to file work memo before the Commissioner. The Commissioner shall file the report expeditiously. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE csl