IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 OP(C).No. 20 of 2011(O) AGAINST THE ORDER IN I.A.NO.4465/2010 OS.460/2000 OF ADDL.SUB COURT,KOTTAYAM PETITIONER/1ST DEFENDANT -------------------------------------------- JAMES E.K., S/O.LATE KURUVILA, IDUKKUTHARA HOUSE, NEENDOOR P.O., KOTTAYAM DISTRICT BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS: PLAINTIFF AND 2ND DEFENDANT ------------------------------------------ 1. CHELLAMMA, W/O. NARAYANAN NAIR, NIRAVATH HOUSE, KOTHANELLOOR P.O., KOTTAYAM DIST.686632. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUDI BHAVAN, THIRUVANANTHAPURAM-695001. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R2 ADV.SRI.RAJEEV V.KURUP FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.460 OF 2000. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY PETITIONER IN O.S.NO.460/2000. EXT.P2(a) TRUE COPY OF THE WRITTEN STATEMENT GFILED BY KSEB. EXT.P3 TRUE COPY OF THE JUDGMENT IN CRL.APPEAL NO.551/2003 DATED 10.4.2007. EXT.P4 TRUE COPY OF THE APPLICATION IA.4466 OF 2010 IN O.S.NO.460 OF 2000. EXT.P5 TRUE COPY OF THE AFFIDAVIT AND PETITION IN O.S.NO.460 OF 2000. EXT.P6 TRUE COPY OF THE ORDER IN I.A.NO.4465 OF 2010 IN O.S.NO.460 OF 2000 ON THE FILE OF ADDL. SUB COURT, KOTTAYAM DATED 22.12.2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 20 OF 2011 O ------------------------------------------------------ Dated this the 10th day of January, 2011 JUDGMENT The first respondent filed O.S.No.460 of 2000 on the file of the Court of the Additional Sub Judge, Kottayam, claiming compensation on account of the death of her son by electrocution. The suit was listed for trial in 2010. The trial commenced. It is stated that the plaintiff and some of the witnesses were examined. At that time, the petitioner (first defendant) filed I.A.No.4466 of 2010 to appoint a Commissioner to note the points mentioned in the accompanying affidavit. Along with the Commission application, the petitioner filed an application to advance the hearing of the case. In the affidavit accompanying that application, it is stated that the second defendant, the Kerala State Electricity Board, had taken steps to shift the transformer. It is contended that if the transformer is shifted, the evidence available in the case would be destroyed. 2. The court below dismissed the application for advancing the hearing of the case (I.A.NO.4465 of 2010) by the order dated O.P.(C) NO.20 OF 2011 :: 2 :: 22.12.2010, holding that there is no urgency for advancing the hearing. The order in I.A.No.4465 of 2010 is challenged in this Original Petition. 3. The learned counsel for the petitioner submitted that an urgent inspection of the property by the Commissioner is required for the complete and final adjudication of the disputes involved in the case. It is further submitted that if delay occurs, material evidence would be destroyed and that the petitioner would not be able to adduce valuable evidence to establish the contentions raised by him. 4. The learned counsel appearing for the first respondent/ plaintiff submitted that there is no question of evidence being destroyed as the petitioner had not sought for appointing a Commissioner at any time before. It is not the question of shifting of transformer alone that is raised in I.A.No.4466 of 2010. Several points are requested to be noted by the Commissioner. The trial of the suit has commenced. The plaintiff and witnesses were examined. At this stage, if the commission application is allowed, the plaintiff would be put to irreparable injury and great hardship. 5. The court below has not considered the application for O.P.(C) NO.20 OF 2011 :: 3 :: appointing a Commissioner on the merits. Therefore, it is not necessary to consider the rival contentions on the merits, at this stage. The court below has not taken up the application on the request made by the petitioner. That order is under challenge in this Original Petition. 6. After having heard the learned counsel for the parties, I am of the view that the court below can be directed to consider I.A.No.4466 of 2010, the application filed by the petitioner for appointing a Commissioner, at the earliest and before continuing with the trial of the case. Accordingly, there will be a direction to the Additional Sub Court, Kottayam to consider and dispose of I.A.No.4466 of 2010 expeditiously and before further continuance of the trial. The Original Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/