IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WP(C).No. 28440 of 2009(O) -------------------------- AGAINST THE COMMON ORDER IN IA.993/09 & 1013/09 IN OS.156/2009 of MUNSIFF COURT, PALA .................... PETITIONER(S): --------------- MONIKUTTY JOSE, W/O.JOSE, KADIYANKUTTIYIL HOUSE, ANDOOR KARA, ELACKADU VILLAGE, MEENACHIL TALUK. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): --------------- P.C.MATHEW, S/O.CHANDY, KADIYANKUTTIYIL HOUSE, ANDOOR KARA, ELACKADU VILLAGE, MEENACHIL TALUK. ADV. SRI.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 28440/09) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.NO.156/09 ON THE FILE OF THE MUNSIFF COURT, PALA. EXT.P2: TRUE COPY OF THE COMMISSION REPORT FILED IN O.A.NO.156/09. EXT.P3: TRUE COPY OF I.A.993/09. EXT.P4: TRUE COPY OF THE I.A.NO.1013/09. EXT.P5: TRUE COPY OF OBJECTION TO EXTS.P3 AND P4. EXT.P6: TRUE COPY OF THE OBJECTION TO EXT.P2. EXT.P7: TRUE COPY OF THE COUNTER TO I.A.NO.981/09. EXT.P8: TRUE COPY OF THE ORDER DATED 31.7.08 IN I.A.NOS.993/09 AND 1013/09. EXT.P9: TRUE COPY OF THE AFFIDAVIT ACCOMPANYING THE PETITION FOR REVIEW. EXT.P10: TRUE COPY OF THE OBJECTION TO EXT.P9. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.28440 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 27th October, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To set aside/quash Ext.P8 to the extent of appointing a second commissioner. 2. To direct the learned Munsiff, Pala to depute the commissioner who prepared Ext.P2 report to inspect the site and ascertain the points sought to be ascertained in Exts.P3 to P5. 2. Plaintiff in a suit for injunction is the petitioner. The dispute involved mainly related to the right over a pathway. An application for interim injunction moved by the plaintiff was granted by the court below. An Advocate Commissioner, after conducting a local inspection, had also filed a report and rough sketch. The defendant/respondent filed two applications, both for determination of certain points enumerated thereunder by an Advocate Commissioner appointed by the court. Second application was filed advancing a case that after the filing of the first application, there was interference over the subject matter by the plaintiff. P3 and P4 are the copies of the applications so filed by the W.P.C.No.28440/09 - 2 - defendant/respondent. Filing objections to the applications of the defendant, the petitioner/plaintiff also sought for determination of additional points by an Advocate Commissioner. The court below, after hearing the counsel on both sides, allowed the applications of the defendants with direction to the Commissioner to ascertain the matters sought for by the plaintiff also in his objections thereto. P8 is the copy of that order. Propriety and correctness of P8 order is challenged in the Writ Petition by the plaintiff invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. While allowing the commission application of the defendant, a different commissioner other than the one who conducted the local inspection earlier and filed a report and plan was appointed is the grievance canvassed by the learned counsel for the plaintiff to impeach P8 order. Since the plaintiff had a case that after passing of the interim injunction, the order was violated by the defendant, the very same Commissioner who previously conducted local inspection should have been appointed to determine the matters additionally sought for by both sides, according to the learned counsel for the plaintiff. On the other W.P.C.No.28440/09 - 3 - hand, learned counsel for the respondent/defendant contended that none of the parties can insist that the same Commissioner should be deputed by the court for conducting local inspection and determination of additional matters which are found necessary for fair disposal of the suit. It is further submitted that the respondent is interested only in determining the additional points sought for in his application by an experienced Advocate Commissioner. At the time of hearing, it is also brought to my notice the defendant has already filed his written statement in the suit. Taking note of the points determined by the previous Commissioner in his report and also those sought for in the two applications of the defendant and the points sought for in the objections to such applications by the plaintiff, I find before an Advocate Commissioner conduct a fresh local inspection, the court below has to raise the issues on the pleadings of the parties so that another Commission, if need be, for determination of the disputes could be avoided later. In case the identification of the property is disputed in the written statement, needless to point out, it may be necessary to measure out the property with the assistance of a surveyor. None of the parties has hitherto made any such request in the application regarding that point for determination W.P.C.No.28440/09 - 4 - by the Advocate Commissioner. Deputing the Commissioner one after the other, before and after the casting of issues, if it can be avoided, has necessarily to be examined. So much so, I direct the court below to settle the issues in the suit, if written statement had already been filed by the defendant as represented by his counsel, and then post the case for preliminary steps for proceeding trial. In case, any further request for determination of any of the points by the Commissioner by any of the parties sought for after framing of the issues, that also has to be examined and appropriate orders thereof has to be passed by the court. P8 order appointing the Commissioner need be given effect to only after completion of the steps as indicated above. However, I make it clear that if any of the parties seek for determination of any point by the Advocate Commissioner which has already been allowed by the court, subject to the satisfaction of the emergent need to do so, the court may pass appropriate orders for determination of such points. It is also open to the court to examine the question whether the Commissioner appointed previously has to be deputed in the place of the Commissioner named in P8 order, I make it clear I am not expressing any opinion that the previous Commissioner has to be deputed whenever a second commission is W.P.C.No.28440/09 - 5 - ordered by the court. The court below is directed to pass appropriate orders as to the appointment of the commission for determination of the points canvassed by both parties, after settling the issues in the suit, at any rate, within six weeks from the date of receipt/production of a copy of this judgment. Subject to the above direction, the writ petition is disposed. srd S.S. SATHEESACHANDRAN, JUDGE