IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 25340 of 2009(O) -------------------------- I.A.NO.1367/2009 IN OS.238/2008 of PRL.MUNSIFF, KASARAGOD .................... PETITIONER(S): --------------- 1. KAMALA, W/O.KORAGA, AGED 65 YEARS, MADAPADACHALU OF MULINJA VILLAGE, UPPALA POST, KASARAGODE TALUK AND DISTRICT. 2. KALYANI, D/O.KORAGA, AGED 47 YEARS, MADAPADACHALU OF MULINJA VILLAGE, UPPALA POST, KASARAGODE TALUK AND DISTRICT. 3. NARAYANA, S/O.KORAGA, AGED 39 YEARS, MADAPADACHALU OF MULINJA VILLAGE, UPPALA POST, KASARAGODE TALUK AND DISTRICT. 4. REVATHI, D/O.KORAGA, AGED 37 YEARS, MADAPADACHALU OF MULINJA VILLAGE, UPPALA POST, KASARAGODE TALUK AND DISTRICT. BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH RESPONDENT(S): --------------- KARUNAKARA BHANDARY, S/O.MALINGA BHANDARY, AGED 42 YEARS, POOJA HOUSE, MAHANGAR OF MULINJA VILLAGE, UPPALA POST, KASARAGODE TALUK AND DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.25340 OF 2009 (O) ----------------------------------- Dated this the 7th day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the entire records in I.A.No.1367/2009 in O.S.No.238/2008 on the file of the Principal Munsiff, Kasaragod and ii. to issue a writ, order or direction setting aside Ext.P3 order in I.A.No.1367/2009 in O.S.No.238/2008 and allowed the same. 2. Petitioners are the defendants in O.S.No.238 of 2008 on the file of the Munsiff Court, Kasaragod. The above suit is one for specific performance of an agreement of sale. Suit claim is based on an oral agreement. Petitioners/defendants resisted the suit claim contending that there was no oral WPC.25340/09 2 agreement as alleged by the respondent/plaintiff. Petitioners, in their written statement, among other contentions, had also raised a contention that the suit property is worth much more than what is stated by the respondent/plaintiff. To prove that contention, they applied for appointment of an Advocate Commissioner to ascertain the value of the suit property. The application was opposed by the respondent/plaintiff. The learned Munsiff, after hearing both sides, dismissed that application. Ext.P3 is the copy of that order. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary, and, hence, it is dispensed with. 4. The learned counsel for the petitioners submitted that since specific performance is claimed on an oral agreement of WPC.25340/09 3 sale, the defendants, in order to substantiate their case that there was no such agreement, have to prove their contention that the value of the property is much more than what is stated by the respondent/plaintiff. I do not find any merit in the submission. When the agreement is disputed, whether it is oral or written, the burden is on the plaintiff/respondent, who seeks specific performance, to prove such agreement by cogent and convincing legal evidence. There is absolutely no need to depute a Commissioner to ascertain the value of the property in respect of which a decree for specific performance of an agreement of sale is claimed. Further more, it is seen from the impugned order of the court below that the case has already been included in the special list for trial on 7.9.2009. There is no merit in the writ petition, and, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp