IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 34507 of 2008(G) -------------------------------------- AGAINST THE ORDER DATED 27/06/2008 IN IA.3188/2008 IN OS.962/2007 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): ---------------------- M.P. JAMES, AGED 47 YEARS, S/O. PAILY, MANPURACKAL HOUSE, THUTHIYOOR KARA, VAZHAKKALA VILLAGE, KANAYANNOOR TALUK, KAKKANADU.P.O, ERNAKULAM DISTRICT, COCHIN – 682 030. BY ADV. MRI.G.RAJAGOPAL MR.THOMAS M.JACOB RESPONDENT(S): ------------------------ 1. RAJESWARI, AGED ABOUT 50 YEARS, W/O. SANGAMESWARAN, PULIKKATTU THUNDIYIL, MARADU DESOM, MARADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, COCHIN – 682 304. 2. N.K. SASIDHARAN, AGED ABOUT 49 YEARS, S/O.N.A. KUTTAPPAN, NALOTHUKUDY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, IRINGOLE.P.O, PIN - 683 548, ERNAKULAM DISTRICT. 3. PETER SELESTINE, AGED ABOUT 49 YEARS, S/O.B.P. SELESTINE, BALUMMEL HOUSE, KANNAMALI.P.O, CHELLANAM KARA, KUMBALANGI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 4. C.K. ANTONY, AGED ABOUT 51 YEARS, S/O. KAKKI, CHOOLACKAL HOUSE, PANANGAD.P.O, PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. WP(C).No. 34507 of 2008(G) 5. MUHAMMED MATHER, AGED ABOUT 53 YEARS, S/O. ABDULLA MATHER, KAKKANATTIL HOUSE, NO.65, EASTERN VILLAS, KOCHI-37, KAKKANADU KARA, KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. R1 BY ADV. MR.V.V.ASOKAN, SMT.S.AMINA . R4 & R5 BY ADV. MR.P.P.RAMACHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34507 of 2008(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.962 OF 2007 ON THE FILES OF THE HONOURABLE SUBORDINATE JUDGES COURT, ERNKULAM. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST AND 2ND DEFENDANTS IN O.S.NO.962 OF 2007 ON THE FILES OF THE HONOURABLE SUBORDINATE JUDGES COURT, ERNAKULAM. EXT.P3: COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM FILED BY DEFENDANTS 3 TO 5 IN O.S.NO.962 OF 2007 ON THE FILES OF THE HONOURABLE SUBORDINATE JUDGES COURT, ERNAKULAM. EXT.P4: COPY OF THE WRITTEN STATEMENT FILED BY THE PLAINTIFF TO THE COUNTER CLAIM RAISED BY DEFENDATNS 3 TO 5 IN O.S.NO.962 OF 2007 ON THE FILES OF THE HONOURABLE SUBORIDINATE JUDGES COURT, ERNAKULAM. EXT.P5: COPY OF THE I.A.NO.3188 OF 2008 IN O.S.NO.962 OF 2007 ON THE FILES OF THE HONOURABLE SUBORDINATE JUDGES COURT, ERNAKULAM. EXT.P6: COPY OF THE COUNTER AFFIDAVIT FILED BY DEFENDNTS 3 TO 5 IN I.A.NO.3188 OF 2008 IN O.S.NO.962 OF 2007 ON THE FILES OF THE HONOURABLE SUBORDINATE JUDGES COURT, ERNAKULAM. EXT.P7: COPY OF THE ORDER DATED 27/06/2008 IN I.A.NO.3188 OF 2008 IN O.S.NO.962 OF 2007 ON THE FILES OF THE HONOURABLE SUBORDINATE JUDGES COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.34507 OF 2008 (G) ----------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the constitution of India seeking the following reliefs: i) to call for the records leading to Ext.P7 order passed in O.S.No.962/2007 on the files of the Subordinate Judges Court, Ernakulam, set aside the same and allow Ext.P5 application as prayed for; ii) to issue such other writs, orders or directions that this Honourable Court may deem fit and proper in the factsa nd circumstances of the case. 2. Petitioner is the plaintiff in O.S.No.962/2007 pending on the file of the Sub Court, Ernakulam. Suit was one for a declaration that a document executed by him, styled as sale deed in favour of the 1st defendant is a sham document and it evidenced only a loan transaction between the plaintiff and the 1st defendant, and for other reliefs. Suit claim was WPC.34507/08 2 resisted by the defendants/respondents in the writ petition, filing written statement. Defendants 3 to 5, it is stated, also raised a counter claim for recovery of possession of the suit property from the petitioner/plaintiff, to which the petitioner also filed a written statement. It is the case of the petitioner/plaintiff that in his suit and also in the written statement filed against the counter claim of defendants 3 to 5, among other contentions, he has a case that the measurements shown in the document, which is sought to be declared as sham, sale deed executed in favour of the 1st defendant, are apparently wrong and the description does not reflect the actual lie of the property. Subsequent document executed by the 1st defendant on the basis of the above deed, according to the petitioner/plaintiff, also carry misdescription, which according to him, is indicative that the deed in favour of the 1st defendant was not a sale deed but evidence only a loan transaction. Petitioner/plaintiff moved an application before the court to appoint a Commissioner to measure out the property with the assistance of a surveyor. He also wanted to have determination of the value of the building situated in the property with the assistance of a Civil WPC.34507/08 3 Engineer. The learned Sub Judge, after hearing both sides, found that the application for measuring out the property and assessment of the value of the building therein, was not warranted in the nature of the disputes arising for adjudication in the suit. Ext.P7 is that order. Propriety and correctness of that order is impeached by the petitioner/plaintiff invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Inviting my attention to the plaint, copy of which is produced as Ext.P1 and also the written statement filed to the counter claim of defendants 3 to 5 by the plaintiff, which is exhibited as Ext.P4, the learned counsel for the petitioner vehemently urged before me that a serious case has been advanced disputing the description of the document, styled as a sale deed executed in favour of the 1st defendant which is sought to be declared as sham, and so much so, the commission application moved by the plaintiff for measuring out the property and assessing the value of the building is most vital for establishing the reliefs claimed in the suit. Countering the argument so advanced, WPC.34507/08 4 the learned counsel for the respondents submitted that in the nature of the reliefs claimed in the suit for declaration that a document is sham and for setting aside subsequent documents on the basis of the previous one, there is no absolutely no need for measuring out the property as desired by the plaintiff and the dismissal of the commission application by Ext.P7 order by the learned Sub Judge is proper, valid and correct and it does not call for any interference. Having regard to the submissions made and taking note of the facts and circumstances presented, especially the relief claimed by the plaintiff in the suit, I find the appointment of a Commission as desired by the plaintiff will be a futile exercise not required for adjudication of any of the disputes involved in the suit and its dismissal by Ext.P7 order by the learned Sub Judge is proper and correct. I do not find any merit in the writ petition, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009