IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).NO. 26211 OF 2010(O) ------------------------------------------ OS.27/2009 OF SUB COURT,NEYYATTINKARA .................... PETITIONER(S): ------------------------ VENUGOPALAN NAIR, S/O.BALAKRISHNAN NAIR, G.V.VIHAR, KADUVILAKAM, KARUMANNOOR DESOM, PARASSALA VILLAGE. BY ADV. SRI.R.GOPAN RESPONDENT(S): ------------------------- 1. RADHA, W/O.PREMKUMAR, RADHA NIVAS, NO.15, MELEKUTTIVELI PUTHEN VEEDU, KODAVILAKAM, KARUMANOOR DESOM, PARASSALA VILLAGE, PIN-695 001. 2. BHASKARAN NAIR VELAYUDHAN NAIR, BHASKARA MANDIRAM, KODAVILAKOM, DO. DESOM, PIN-695 001. 3. ANSALAM @ SASI, S/O.CHELLAPPAN NADAR EDAKKATTUVILA PUTHEN VEEDU, KODAVILAKOM, WARD MURIYANKARA DESOM, DO. VILLAGE, PIN-695 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.26211 of 2010 ==================================== Dated this the 18th day of August, 2010 J U D G M E N T With petitioner-plaintiff on the party array property involved in the suit was sold in court auction on 15.3.1995 in E.P. No.33 of 1994 in O.S.No.1 of 1990 of the court of learned Sub Judge, Neyyattinkara. After about 14 years petitioner filed O.S.No.27 of 2009 in the same court for a declaration of his title, to set aside sale on the ground of fraud and material irregularity and for consequential reliefs. He claimed that notwithstanding the delivery reported in O.S. No.1 of 1990 he continued to be in possession of the property. Respondents resisted the suit on various grounds. Petitioner filed I.A. No.1659 of 2010 to appoint Advocate Commissioner to identify the suit property and report on potential value of the same and its market value as on the date of court sale (15.03.1995). Respondents resisted that application. They did not dispute identity of the property. But they contended that the application for issue of commission is not necessary. Learned Sub Judge upheld that objection and dismissed the application by Ext.P4 which is under challenge. Learned counsel W.P(C) No.26211 of 2010 -: 2 :- has invited my attention to paragraph 5 of the plaint where local importance of the suit property is described and it is argued that to prove the same it is necessary to appoint and Advocate Commissioner. 2. So far as identification of the suit property is concerned contesting respondents have stated that they have no dispute on identity and that has been recored by the learned Sub Judge. Moreover it is the contention of petitioner that he is still in possession of the suit property. Hence identification of the suit property with assistance of an Advocate Commissioner is not warranted. 3. Then what remained is ascertainment of market value of the property as on date of court sale (15.03.1995). Learned Sub Judge observed that it is in 2010 that assessment of market value of the property as on 15.03.1995 is requested through an Advocate Commissioner. Obviously Commissioner can make only a guess work of the market value of the property in the year 1995 which cannot take the form of evidence. 4. So far as local importance of the suit property as on the date of sale is concerned it is open to the petitioner to adduce evidence regarding that by examining the appropriate witnesses W.P(C) No.26211 of 2010 -: 3 :- in that regard. Having regard to these aspects I am not inclined to think that learned Sub Judge has exercised the discretion not to allow the application arbitrarily or illegally so that interference by this Court is called for. I make it clear that it is open to the petitioner to adduce evidence regarding local importance of the property during the relevant time by other appropriate mode if such evidence is found by the learned Sub Judge to be necessary. Writ Petition is closed as above. THOMAS P. JOSEPH, JUDGE. vsv