IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 22201 of 2009(O) -------------------------- AGAINST THE ORDER DATED 15/07/2009 IN IA.1757/2008 IN IOP.4/2008 of SUB COURT, PERUMBAVOOR .................... PETITIONER(S): PETITIONER: -------------------------- SUSEELA, AGED 44 YEARS, W/O.RADHAKRISHNAN, KAVISSERY HOUSE, IMURI P.O., KOOVAPPADY VILLAGE. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): --------------- 1. SABIK AHAMMED, AGED ABOUT 26 YEARS, RABUHA MANZIL, KOCHERI, MATTANCHERRY TALUK. 2. HANEESH, AGED 31 YEARS, CC 2/96, KOCHERI, MATTANCHERRY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.22201 OF 2009 () ----------------------------------- Dated this the 5th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to issue a writ of certiorari or any other appropriate writ or order quashing Ext.P5 order dismissing I.A.No.1757/2008 in IOP.No.4/2008 commission application and allow the same. ii. to issue such other appropriate writ or order which is just and necessary on the facts and circumstances of the case. 2. Petitioner is the applicant in IOP.No.4 of 2008 on the file of the Sub Court, Perumbavoor. With the application to sue as an indigent person, she moved an application for appointment of a commission seeking ascertainment of certain matters stated therein. Espousing a grievance that the application for appointment of a commission is not receiving attention of the court she approached this Court filing a writ petition seeking directions to the court below for an early disposal of that application. In W.P.(C).No.15927 of 2009 by WPC.22201/09 2 judgment dated 11.6.2009, this Court directed the court below to hear and dispose the commission application within the time limit fixed. Pursuant thereto, the commission application was heard, but dismissed by the learned Sub Judge by Ext.P5 order for reasons unsustainable under law, is the grievance canvassed in the present writ petition by the applicant in the indigent O.P. invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Considering the submissions made and taking note of the facts and circumstances presented with reference to Ext.P5 order impugned in the petition, I find no notice to the respondents is necessary, and, hence, it is dispensed with. The learned counsel for the petitioner submitted before me the reasons set out in Ext.P5 order that the petitioner was represented when the case was posted for enquiry by a counsel other than the counsel who filed vakalath for the applicant, attention of the court was not invited to for consideration of the commission application as and when the indigent O.P. was posted for hearing, and when a specific query was made by the court as to what purpose the commission application was made it was not supplied with any WPC.22201/09 3 reply or answer etc. for dismissing the application are not proper and sustainable under law. Perusing Ext.P5 order, I find some justification in the submissions made by the counsel. Observations of the learned Sub Judge that one of the points sought to be ascertained through the Advocate Commissioner as to the possession of the plaintiff over the property involved is of course correct, but the other observations made in the impugned order as to the applicant having been represented by a counsel other than the counsel engaged by her, needless to point out should have been avoided while considering the merit of a commission application. The dismissal of the commission application by the learned Sub Judge in the facts and circumstances present cannot at all be justified. Setting aside Ext.P5 order, I direct the learned Sub Judge to consider the application afresh and pass appropriate orders on the application in accordance with law within a period of ten days from the date of receipt of a copy of this judgment. In case, the court finds that any of the points sought for determination through the Advocate Commissioner is not necessary, it may pass appropriate orders limiting the matters raised in the application for determination by the Advocate Commissioner while appointing a Commission. A person who has applied for WPC.22201/09 4 permission to sue as an indigent has filed the petition seeking the aid of the court for ventilating her grievances, and to substantiate her claim, she has moved an application for appointment of a Commission should not be lost sight of by the court, which as an instrumentality of justice is expected to and has to consider and dispose the proceedings including the application for appointment of a Commission in that proceedings in accordance with law advancing the ends of justice. Subject to the directions and observations as above the writ petition is disposed. Handover a copy of this judgment to the counsel appearing for the petitioner on usual terms and transmit a copy of the judgment to the Sub Court by fax through District Judge, Thrissur, forthwith. S.S.SATHEESACHANDRAN JUDGE prp