IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 5045 of 2009(A) OS.320/2008 of MUNSIFF-MAGISTRATE COURT,THODUPUZHA PETITIONER: --------------- K.G. KRISHNAKUMAR, S/O. GOPINATHAN NAIR, KRISHNAVILASAM HOUSE, VAZHITHALA.P.O, PURAPPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.J.MICHAEL RESPONDENTS: --------------- 1. JOHN, S/O. OUSEPH, AGED ABOUT 76 YEARS, MEMANA, (PUTHENPURAKKAL) HOUSE, KUNJI.P.O, PURAPPUZHA VILLAGE, THODUPUZHA TALUK. 2. JOSEPH, S/O. OUSEPH, MEMANA, (PUTHENPURAKKAL) HOUSE, KUDAYATHOOR.P.O, -DO- VILLAGE, THODUPUZHA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 5045 OF 2009 A ------------------------------------------------------ Dated this the 19th February, 2009 JUDGMENT The petitioner filed O.S.NO.320 OF 2008, on the file of the Court of the Munsiff of Thodupuzha, for declaration of easement and for consequential injunction. Advocate Binumol Joseph was appointed as Commissioner to inspect the plaint schedule properties. The Commissioner inspected the properties and submitted report. An order of interim injunction was granted in favour of the petitioner. The petitioner alleged that the first defendant violated the interim order of injunction and dug some pits in the plaint schedule property. An application was filed by the petitioner under Rule 2A of Order XXXIX of the Code of Civil Procedure. That application is pending. To prove the contentions in the application filed under Rule 2A of Order XXXIX, the petitioner filed an application, I.A.No.36 of 2009, for appointment of a Commissioner. The court below allowed the application for appointment of Commissioner, but instead of appointing the same Commissioner who inspected the property earlier, appointed a senior member of the bar, Advocate Sri.P.V.George, as the Commissioner. It would appear that at the time of hearing of I.A.No.36 of 2009, the first defendant raised some objections in the matter W.P.(C) NO. 5045 OF 2009 :: 2 :: of appointment of the earlier Commissioner. The order dated 21.1.2009 in I.A.No.36 of 2009 is under challenge in this Writ Petition. 2. Learned counsel for the petitioner submitted that the court below was not justified in appointing another Commissioner. Learned counsel appearing for the first defendant stated that he has serious objection in appointing the earlier Commissioner. It is fairly stated by the counsel for the first respondent/first defendant that no application was filed by the first defendant to set aside the report and sketch submitted by Adv. Binumol Joseph, though objections were filed to that report. It is also clear that no personal bias is attributed against Advocate Binumol Joseph. 3. Now the question is whether the order passed by the court below requires interference. It is not in dispute that appointment of a Commissioner is necessary to note certain facts alleged in the application filed under Order XXXIX Rule 2A of the Code of Civil Procedure. The court below exercised its discretion to appoint a senior member of the Bar as the Commissioner. The case of the petitioner is that unless the Commissioner who inspected the property earlier is deputed, the nature of the property as on the date of the first inspection and the change brought about by the acts allegedly done in violation of the temporary interim W.P.(C) NO. 5045 OF 2009 :: 3 :: injunction would not be clear to the second Commissioner. The submission made by the petitioner has force. At the same time, I do not think, it is necessary to interfere with the appointment of Sri.P.V.George as the Commissioner. I think, the interest of both parties would be protected and the purpose for which the Commissioner is appointed would be satisfied, if Adv. Sri.P.V.George and Binumol Joseph are appointed as joint Commissioners. Accordingly, the order passed by the trial court is modified and Advocate Sri.P.V.George and Advocate Smt.Binumol Joseph are appointed as joint Commissioners. It is made clear that the expenses incurred as Commissioners' batta shall be the costs in the application under Rule 2A of Order XXXIX of the Code of Civil Procedure. The court below shall fix the remuneration payable to each Commissioner. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/