IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 WP(C).No. 2636 of 2007(L) ------------------------------------ OS.536/2005 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONERS: ------------------- 1. VENKIDACHALAM, S/O. TRIPRAYAR SAMOOHAMADATHIL GOPALAKRISHNAN, GURUVAYUR AMSOM, DESOM, CHAVAKKAD TALUK, REP. BY MUKTHIAR AGENT, T.R.VYDIANATHAN,S/O.KAIPPILLY- MADATHIL RAMAKRISHNA IYER, GURUVAYUR ASOM, DESOM, CHAVAKKAD TALUK. 2. T.R. VYDIANATHAN, S/O.KAIPPILLY MADATHIL RAMAKRISHNA IYYER, GURUVAYUR AMSOM, DESOM, CHAVAKKAD TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENTS: ----------------------- 1. RASHTRIYA SWAYAM SEVAKA SANGAM, REPRESENTED BY PRACHARAK, M .K. SHANMUKHAN, NANNAMPURATH VEEDU, P.O. BLANGAD, ERATTUPUZHA. 2. RASHTRIYA SWAYAM SEVAKA SANGAM, REPRESENTED BY GURUVAYUR TALUK KARYAVAHAK, GURUVAYUR. 3. RASHTRIYA SWAYAM SEVAKA SANGAM, REPRESENTED BY GURUVAYUR TALUK SANGAM CHALAK, GURUVAYUR. 4. RASHTIYA SWAYAM SEVAKA SANGAM, REPRESENTED BY DISTRICT KARYAVAHAK, R.S.S. DISTRICT OFFICE, KUNNAMKULAM. 5. RASHTRIYA SWAYAM SEVAKA SANGAM, REPRESENTED BY KERALA STATE KARYAVAHAK, R.S.S. STATE OFFICE, ELAMAKKARA, P.O. ERNAKULAM. W.P.(C) NO.2636/2007 6. RASHTRIYA SWAYAM SEVAKA SANGAM, REPRESENTED BY KERALA STATE SANGACHALAK, R.S.S. STATE OFFICE, ELAMAKKARA, P.O. ERNAKULAM. 7. RASHTRIYA SWAYAM SEVAKA SANGAM, REPRESENTED BY GENERAL SECRETARY, R.S.S. CENTRAL OFFICE, NAGPUR. 8. MUTHUKRISHNAN, S/O. KAIPPILLY MADATHIL RAMAKRISHNA IYYER, GURUVAYUR AMSOM, DESOM, CHAVAKKAD TALUK. 9. GOPALAKRISHNAN, S/O. KAIPPILLY MADATHIL RAMAKRISHNA IYYER, GURUVAYUR AMSOM, DESOM, CHAVAKKAD TALUK. 10. SAHASRANATHAN, KAIPPILLY MADATHIL RAMAKRISHNA IYYER, GURUVAYUR AMSOM, DESOM, CHAVAKKAD TALUK. 11. RAMACHANDRAN, KAIPPILLY MADATHIL RAMAKRISHNA IYYER, GURUVAYUR AMSOM, DESOM, CHAVAKKAD TALUK. 12. SANGAMESWARAN, KAIPPILLY MADATHIL RAMAKRISHNA IYYER, GURUVAYUR AMSOM, DESOM, CHAVAKKAD TALUK. BY ADV. SRI.P.J.STEPHEN SRI.K.RAMAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.2636/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PLAINT FILED BY THE PETITIONER BEFORE THE HONOURABLE MUNSIFF COURT CHAVAKKAD DT. 6.6.05. EXT.P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS IN OS. NO.536/05 BEFORE THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 31.7.05. EXT.P3:- COPY OF THE IA. NO.3077/06 IN IS. NO.536/05 FILED BY THE PETITIONERS BEFORE THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 11.9.06. EXT.P4:- COPY OF THE IA. NO.3076/06 IN OS. NO.536/05 FILED BY THE PETITIONERS BEFORE THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 11.9.06. EXT.P5:- COPY OF THE INTERIM REPORT FILED BY THE COMMISSIONER DT. 27.9.06. EXT.P6:- COPY OF THE IA. NO.3509/06 IN OS. NO.536/05 FILED BY THE PETITIONERS BEFORE THE HONOURABLE MUNSIFF COURT, CHAVAKKAD DT. 12.10.06. EXT.P7:- COPY OF THE COUNTER AFFIDAVIT IN IA,. NO.3509/06 IN OS. NO.536/05 FILED BY THE RESPONDENTS DT. 23.10.06. EXT.P8:- COPY OF THE IA. NO.3510/06 IN IS. NO.536/05 FILED BY THE PETITIONERS BEFORE THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 12.10.06. EXT.P9:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN IA. NO.3510/06 IN OS. NO.536/05 BEFORE THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 23.10.06. EXT.P10:- COPY OF THE IA. NO.351/06 IN OS. NO.536/05 FILED BY THE PETITIONERS BEFORE THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 12.10.06. EXT.P11:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN IA. 3511/06 IN OS. NO.536/05 BEFORE THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 23.10.06. EXT.P2:- COPY OF THE ORDER IN IA. NO.3509/06 IN OS. NO.536/05 PASSED BY THE HONOURABLE MUNSIFF'S COURT, CHAVAKKADDT. 14.12.06. EXT.13:- COPY OF THE ORDER IN IA. NO.3510/06 IN OS. NO.536/05 PASSED BY THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 14.12.06. EXT.P14:- COPY OF THE ORDER IN IA. NO.3511/06 IN OS. NO.536/05 PASSED BY THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 14.12.06. EXT.P15:- COPY OF THE ORDER IN IA. NO.3076/06 IN OS. NO.536/05 PASSED BY THE HONOURABLE MUNSIFF'S COURT, CHAVAKKAD DT. 14.12.06. /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== W.P.(C) No.2636 OF 2007 ===================== Dated this the 11th day of January 2008 JUDGMENT This writ petition is filed with a prayer to set aside the orders passed in Exts.P12,13 and 14. 3 applications were filed as I.A.Nos.3509,3510 and 3511 of 2006 with prayers for issuance of a new Commissioner, to depute an expert Civil Engineer for rendering assistance to the Commissioner and also for a direction permitting the Commissioner to break open the lack for the purpose of inspecting the property. The learned Munsiff held that one Advocate Mr.Salim.K.S. has been appointed as the Commissioner previously and therefore the question of issuance of a fresh Commission does not arise. Learned counsel for the petitioners submits before me that the said Commissioner had left for gulf countries after submitting an interim report whereby he has reported about the facts after inspecting the outer portion of the building. When a Commissioner, who is appointed is not available for further inspection, the court is not helpless and therefore after recording the same, certainly the court can issue a new Commission for the purpose of inspecting the property. But, I make it very clear that since the WP(C)2636/2007 -:2:- facts existing on the date of issuance of a Commission may be of great importance for a decision in the case as a special case the interim report can be kept in record and the parties can be permitted to adduce evidence and file objections on the same. Therefore, I direct the court below to restore I.A.Nos.3509,3510 and 3511 of 2006 and consider the said applications afresh and pass appropriate orders. If by any chance the previous Commissioner has come back and available, there is no bar in directing him to again visit the property. Otherwise an experienced Commissioner may be appointed for visiting the property. Writ petition is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-