IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 36840 of 2008(I) -------------------------- OS.293/1999 of MUNSIFF'S COURT, DEVIKULAM .................... PETITIONER(S): -------------------------- P.V.KURIAKOSE, S/O.VARKEY, AGED 70 YEARS, PEEDIKAPARAMBIL HOUSE, BROTHERS HOTEL, MUNNAR TOWN, KDH VILLAGE, DEVIKULAM TALUK. BY ADVS. MR.D.KISHORE, MR.LIJI.J.VADAKEDOM. RESPONDENT(S): --------------------------- TATA TEA LTD.,A COMPAY INCORPORATED IN INDIA HAVING ITS REGISTERED OFFICE AT I BISHOP LEFROY ROAD, CALCUTTA 700 020 IN THE STATE OF WEST BENGAL AND HAVING ITS REGIONAL OFFICE IN MUNNAR, REPRESENTED BY THE POWER OF ATTORNEY HOLDER P.G.PRAKASH SHANKAR, S/O.GANAPATHY IYER,AGED 52 YEARS, DEPUTY GENERAL MANAGER,INDUSTRIAL RELATIONS TATA TEA LTD., REGIONAL OFFICE, MUNNAR,KDH VILLAGE, DEVIKULAM TALUK. BY ADVS. MR.JOSEPH KODIANTHARA, MR.MATHEWS K.UTHUPPACHAN, MR.TERRY V.JAMES. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36840/2008 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.293/99 BEFORE MUNSIFF COURT, DEVIKULAM. P2: COPY OF THE WRITTEN STATEMENT IN O.S.293/99. P3: COPY OF APPLICATION FOR APPOINTING THE COMMISSIONER IN I.A.1492/08 IN O.S.293/99. P4: COPY OF NO OBJECTION FILED BY RESPONDENT TO EXT.P3 COMMISSION APPLN. P5: COPY OF THE ORDER IN I.A.1492/08 IN O.S.293/99. P6: COPY OF COMMISSIONER'S REPORT WITH SY.PLAN DTD. 5/10/01. P7: COPY OF PROCEEDINGS IN LA 2/72. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.36840 of 2008 - I --------------------------------- Dated this the 6th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To call for the records leading to the passing of Exhibit P5 and to quash the same. ii) To direct the Munsiff Court, Devikulam to reconsider Exhibit P3 in accordance with law.” 2. Petitioner is the defendant in O.S.No.293 of 1999 on the file of the Munsiff Court, Devikulam and the respondent, the plaintiff. Suit is one for declaration of title, recovery of possession and injunction. Pursuant to filing of written statement by the petitioner/defendant resisting suit claim and the application moved by the respondent/plaintiff, an advocate commissioner conducted a local inspection, prepared a report and also a plan with the assistance of a surveyor. The petitioner/defendant thereafter moved an application (P3) for appointment of a fresh commission in which he raised objection to the report already filed before the court. The learned Munsiff, after hearing both sides dismissed that application. Ext.P5 is the W.P.(C).No.36840 of 2008 - I 2 copy of that order. Impeaching the propriety and correctness of Ext.P5 order, petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P5 order and other materials tendered in the petition, I find that there is no impropriety or illegality in the order passed by the learned Munsiff declining the request of the petitioner for appointment of a second commission before evaluating the merit of the first commission report obtained in the case. In Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) a Division Bench of this Court has already opined that without setting aside the first commission report a second commission cannot be appointed. So much so, Ext.P5 order passed by the court below can only be considered as proper and correct. However, I make it clear that it is open to the petitioner to canvass his objections if any to the commission report already W.P.(C).No.36840 of 2008 - I 3 collected by the court at the trial of the suit and in case the petitioner takes appropriate steps to substantiate such objections, the court below shall consider the merit of the commission report in the light of such objections untrammelled by any of the observations made in Ext.P5 order. Subject to the above observation, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-