IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 37104 of 2008(P) --------------------------------------- PETITIONER: ------------------- PRAMOD.C.KUMAR, (INDIA) AGED 50 YEARS, S/O.ANANDAN, SENIOR SYSTEM MANAGER, 2062, SUPERIOR C.T.TRACY, CA.95304-5800 USA, HAVING INDIAN ADDRESS AT 603, ALAGIRISWAMY SALAI, K.K.NAGAR, CHENNAI-78, TAMIL NADU. BY ADVS. MR.MANJERI SUNDERRAJ, SMT.SUSAN JACOB, MR.MANJERI SUBIN SUNDER RAJ, MR.G.K.GOPAKUMAR. RESPONDENT: ---------------------- JAYANTHI PRAMOD(USA), AGED 40 YEARS, D/O.SEKHARAN, ADMINISTRATIVE ASSISTANT, 687, HAROLD SMITH DR.TRACY,CA-95304, USA OLD (PRESENT) 719 SPARROW CT,TRACY.CA.95377 USA, PHONE:209-814-5668, E MAIL: JAYNE PRAMOD@ CI.TRACY.CA.US AND TRACYJAYAN@YAHOO.COM . , PERMANENT INDIAN ADDRESS AT MASCOT HOUSE, NEAR.GOVT,HS,PAYAMBALAM POST,KANNUR, KANNUR TALUK AND DISTRICT, KERALA. BY ADV. MR.V.RAMKUMAR NAMBIAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37104/2008-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: FOREIGN COURT REQUISITION LETTER OF REQUEST DTD. 20/11/2008 BY THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN JOAQUIN STOCKTON BRANCH, U.S.A. TO APPOINT ADVOCATE COMMISSION. EXT.P.2: CORRECT COPY OF THE ORIGINAL ORDER SIGNED IN OPEN COURT ON FILE OF THE OFFICE OF THE JUDGE MR. ROBIN APPEL, BEARING HIS SIGNATURE AND DULY ATTESTED WITH ORIGINAL COURT SEAL. EXT.P.3: MEMO REGARDING SERVICE OF DIRECT NOTICE TO THE RESPONDENT ISSUED BY THE PETITIONER'S COUNSEL BY E-MAIL AND POST. EXTS.P4 TO P6: NIL. EXT.P.7: YAHOO E MAIL PRINT OUT OF THE E-MAIL MESSAGE RECEIVED BY PETITIONER'S COUNSEL FROM THE PETITIONER IN U.S.A. THROUGH ADV. G.K. GOPAKUMAR. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER OF DISSOLUTION DTD. 07/01/2008 OF THE SUPER COURT OF CALIFORNIA, COUNTRY OF SAN JOAQUIN STOCKTON, U.S.A. EXT.R1.B: COPY OF THE PETITION IN O.P. NO. 170/08 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KANNUR. EXT.R1.C: COPY OF THE ORDER OF THE JUDGMENT IN FL 346432 DTD. APRIL 8TH 2009 OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN JOAQUIN STOCKTON JUDICIAL BRANCH, U.S.A. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.37104 of 2008 - P --------------------------------- Dated this the 15th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking a direction to the Principal Sub Judge, Thalasseri to appoint an advocate commissioner to assess the value of income and assets of the respondent in the petition on the basis of a letter of request issued from a Foreign Court, namely, Superior Court of California. Ext.P1 is the copy of letter of request. Subsequent to the filing of the writ petition, an authenticated copy of the letter of request was also produced before this Court. Notice on admission given, the respondent has entered appearance through counsel. 2. I heard the counsel on both sides. 3. The parties involved in the writ petition are husband and wife and both of them were together in the United States of America. At present, the petitioner, husband is stated to be in India, and wife continuing in the foreign country. She has initiated matrimonial proceedings against the petitioner for W.P.(C).No.37104 of 2008 - P 2 dissolution of her marriage as per the rules and regulations governing the proceedings of the foreign court. It appears that the assets of both parties have to be ascertained in such proceedings for passing appropriate orders in the event of dissolution of their marriage. The foreign court has issued Ext.P1 letter of request on the application of the petitioner herein to ascertain the assets of the respondent/wife, acquired during the marriage period from May 1988 to July 2006 in India. Certain property details allegedly belonging to the respondent are also mentioned of in the latter of request. On the basis of that letter of request, petitioner has approached this Court and filed the writ petition seeking a direction to the Principal Sub Court, Thalassery to appoint a commissioner to ascertain the value of the properties belonging to the respondent. Perusing the writ petition, I find the petitioner has canvassed a proposition that what is not prohibited by the procedure in the appointment of a commission can be ordered by this Court in honouring the request made by a Foreign Court. I find that Section 75 and Order XXVI CPC do not enable this Court to appoint a W.P.(C).No.37104 of 2008 - P 3 commissioner to have a roving expedition as to what are the assets of the respondent for the period from 18.5.2008 to 7/7/2006 and to trace out how many items of those properties have been disposed from time to time, what was its value then and now, and to file a report thereof to enable the Foreign Court to pass appropriate orders/directions in the matrimonial proceedings. Order XXVI Rule 9 CPC enables the court to appoint a commissioner for the purpose of local inspection to collect materials necessary for resolving any matter in dispute arising for adjudication. Order XXVI Rule 10 enables the court to appoint a commissioner for the purpose of taking evidence. Likewise the following provisions in the above Order also indicate circumstances under which a commissioner can be appointed. Nowhere in the Code, the court is empowered to appoint an advocate commission for determining such matters as covered under ther letter of request issued from the foreign court. Compliance of such a letter of request by appointment of a commissioner to collect details sought for is fraught with serious consequences as no advocate commissioner can be considered as W.P.(C).No.37104 of 2008 - P 4 an expert in determining the value of immovable properties without sufficient materials enabling him to do so is made available. So much so, the letter of request issued by the Foreign Court is prima facie found not entertainable. No appointment or issue of any direction to appoint a commissioner either under the provisions of the Code of Civil Procedure or in exercise of the powers vested with this Court under the Constitution, is permissible in the given facts of the case. 4. The learned counsel for the respondent has filed a counter affidavit before this Court stating that final orders have been passed in the matrimonial proceedings by the Foreign Court submitting that the letter of request for appointment of a commissioner to determine the assets has become infructuous. The finality of the proceedings is challenged by the petitioner contending that further steps are now being continued in the proceedings. A letter received from a counsel in the foreign country is produced to show that the proceedings are continuing. The letter produced prima facie indicate that the advocate in the Foreign Court is intending to prefer an appeal against the order. W.P.(C).No.37104 of 2008 - P 5 That also indicates that the proceedings have been disposed of by the court which has issued the letter of request. In view of the circumstances enumerated above, I find the the writ petition is only to be dismissed, and I do so. S.S.SATHEESACHANDRAN, JUDGE. bkn/-