IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 18622 of 2007(P) -------------------------- AGAINST THE ORDER IN OS. 137/2004 & OS.65/2004 of MUNSIFF COURT,HARIPAD .................... PETITIONER: --------------- K.V.PADMAKARAN,AGED 55,S/O.VELUTHAKINJU, KANDATHILPARAMBIL,MUTTOM P.O,HARIPAD. BY ADV. SRI.SAJITH KUMAR V. RESPONDENTS: --------------- 1. VENUGOPALAN NAIR,AGED 37,S/O.GOPALAN NAIR,RESIDING AT CHOORAKATTU VADAKETIL, CHEPAD,HARIPAD. 2. REMASH KUMAR AGED 32,S/O.GOPALAN NAIR, RESIDING AT CHOORAKATTU VADAKETIL,CHEPAD, HARIPAD,POWER OF ATTORNEY HOLDER OF IST RESPONDENT ADV. SRI.T.K.VIPINDAS FOR R1 AND R2 SMT.R.PADMAKUMARI FOR R1 & R2 SRI.S.V.BALAKRISHNA IYER(BY ORDER) SRI.T.KRISHNANUNNI (BY ORDER) SRI.N.NANDAKUMARA MENON(BY ORDER) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.18622/2007 APPENDIX PETITIONER'S EXTS; EXT.P1 THE NOTICE DATED 14/6/07 ISSUED BY THE JUNIOR SUPRINTENDENT AS THE ORDERS OF THE MUNSIFF'S COURT, HARIPAD. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.18622 OF 2007 ---------------------------- DATED THIS THE 3RD DAY OF FEBRUARY, 2009 JUDGMENT Petitioner is the plaintiff in O.S.No.65/2004. The Munsiff's Court appointed an Advocate Commissioner for conducting cross-examination and re-examination of witnesses. Learned counsel for the petitioner submitted that the appointment of the Commissioner, in the absence of a panel, which is mandatory under Order XVIII Rule 4 of Clause 6 is illegal. Ext.P1 is the order passed by the Munsiff's Court appointing a Commissioner for the purpose of conducting cross-examination an re-examination. It is true that Order XVIII Rule 4(6) states that the High Court or the District Judge as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. So long as there is no panel of Commissioners prepared for the purpose of examination of the witnesses in the said court, petitioner cannot complain that Advocate Commissioner shall not -2- W.P.(C).No.18622/2007 be appointed. If it is a case of appointment of some Commissioners other than the Commissioners from the panel, I think that there is force in the contention of the petitioner, so long as there is no panel of Commissioner so far prepared. Appointment of a particular Advocate as a Commissioner in the facts of the case, cannot be challenged for the reason that he has not a member of the panel. In some cases in the interest of justice, appointment may be necessary. This is a case where the learned Munsiff's Court feels that the examination shall be done through an Advocate Commissioner. I do not find any reason to interfere with Ext.P1 order. Writ Petition fails and accordingly the same is dismissed. HARUN-UL-RASHID, Judge. kcv. -3- W.P.(C).No.18622/2007