IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 WP(C).No. 27341 of 2007(E) -------------------------- AGAINST THE ORDER DATED 04/09/2007 IN IA 1577/07 IN OPELE.47/2005 of MUNSIFF COURT, TIRUR .................... PETITIONER: ------------ C.P.BAPPUTTY, AGED 43 YEARS, S/O.KUNHALIKUTTY, AREEPARAMBIL, P.O.B.P.ANGADI, TIRUR-2. BY ADV. SRI.K.RAMACHANDRAN SMT.R.MEERA RESPONDENTS: ------------- 1. CHEMBRAVEETTIL VELAYUDHANUNNI, S/O.APPUKUTTAN, TIRUR TALUK, THALKKAD AMSOM DESOM. 2. PONNAMKUZHIYIL ABDUL AZEEZ, S/O.ABDULLAKUTTY, B.P.ANGADI, TIRUR. 3. PALAKKAL ABDUL GAFOOR, S/O.ABDUL KHADER, TIRUR TALUK, THALAKKAD AMSOM DESOM, P.O.B.P.ANGADI. BY ADV. SRI.T.KRISHNAN UNNI SRIC.M.MOHAMMED IQUABAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 27341/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE AFFIDAVIT TO IA NO.1577 OF 2007 DT. 4.9.07 IN ELECTION OP 47/05 TIRUR MUNSIFF EXT.P2. COPY OF THE ORDER IN IA NO.1577 OF 2007 DT. 5.9.07. /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 27341 OF 2007 --------------------- Dated this the 2nd day of April, 2008 JUDGMENT This writ petition is filed to set aside the order passed in IA 1577/07 in OP (Election) 47/05. 2. Heard both sides. It is submitted that the application filed in the election petition for issuance of a commission to examine the witnesses has been allowed by the court. Then the first respondent in the election petition moved a petition for review and it has been dismissed. It is against that decision, the present writ petition is filed. 3. Learned counsel for the petitioner would submit that Order XVIII Rule 4 does not automatically permit the court to issue a commission for examination of witnesses but the court has to take into consideration the relevant factors before it does so. On the other hand, learned counsel for the respondents herein would submit that Order XVIII Rule 4 makes it crystal clear regarding the power of the court to issue a commission. There cannot be any quarrel with the proposition posed by the learned counsel for the respondents. WPC NO 27341/07 2 But the facts that remains to be considered is whether it is automatic in all cases to appoint a Commissioner for examination of witnesses. If it was so wide, certainly the legislature would not have imposed the proviso. Unfortunately it appears that this matter has not been taken into consideration. 4. Therefore, I set aside the order passed by the court below and direct the court to consider IA 1577/07 in OP (Election) 47/05 afresh after hearing both sides and pass appropriate order. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 27341/07 3 WPC NO 27341/07 4