IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 OP(C).NO. 2766 OF 2011(O) --------------------------------------- AGAINST THE ORDER DATED IN IA.5666/2011 IN OS.336/2010 OF II ADDITIONAL SUB COURT,THRISSUR .................... PETITIONER/IST PETITIONER/IST DEFENDANT ----------------------------------------------------------------- DHARMAPALAN, S/O.THARAPARAMBIL KUMARAN, KOLAZHY VILLAGE-DESOM, THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------------------------------------------- BIJU.G., S/O.GOPALAKURUP, SREEMANDIRAM HOUSE, KOLAZHY VILLAGE-DESOM, PIN-680 010, THRISSUR TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2766 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.336 OF 2010 ON THE FILE OF THE SECOND ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.336 OF 2010 OF THE SECOND ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P3 TRUE COPY OF I.A.NO.5666 OF 2011 IN O.S. NO.336 OF 2010 OF THE SECOND ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P4 TRUE COPY OF THE COUNTER IN I.A. NO.5666 OF 2011 IN O.S. NO.336 OF 2010 OF THE SECOND ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. NO.5666 OF 2011 IN O.S. NO.336 OF 2010 BEFORE THE SECOND ADDITIONAL SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2766 of 2011 ==================================== Dated this the 24th day of August, 2011 J U D G M E N T Respondent is served through special messenger, but there is no response. 2. Petitioner-first defendant challenges Ext.P5, order on I.A. No.5666 of 2011 in O.S. No.336 of 2010 of the court of learned Additional Sub Judge-II, Thrissur. That is a suit filed by the respondent for a decree for specific performance of an agreement for sale (allegedly) executed between petitioner and the respondent. According to the petitioner, himself and his wife (second defendant) availed a loan from the respondent and gave signed blank papers including stamp papers and the disputed sale agreement has been fabricated. Petitioner also contended that the suit property is worth Rupees Forty lakhs. Petitioner filed I.A. No.5666 of 2011 to appoint an Advocate Commissioner to report on the nature and lie of the property and assess market value of the land and building obviously to show that he would not have agreed to sell the property for Rupees Ten lakhs as stated in the disputed agreement. That application was dismissed by the learned Sub Judge as per Ext.P5, order observing that report of the O.P(C) No.2766 of 2011 -: 2 :- Advocate Commissioner is not relevant for decision of the case and it is open to the petitioner to prove the value of land by producing the fair value fixed by the Government or by resorting to other modes. Learned counsel contended that fair value of property during the time was not finalized and it may be difficult for the petitioner to get appropriate document to prove value of the land during the time the alleged agreement was executed. Also, the value of the building cannot be proved by other modes. According to the learned counsel if a Commissioner is appointed he can report on the local importance of the property and get the building valued, if necessary with the assistance of an Expert. 3. The attempt of petitioner is to show that value of the property is Rupees Forty lakhs and it would not have been agreed to be sold to the respondent for Rupees Ten lakhs. Having regard to the circumstances stated above I am inclined to think that the report of the Advocate Commissioner may be relevant to the extent it concerned the local importance of the property and value of the building as on the date of (alleged) execution of the agreement, if necessary ascertained through an Expert. In these circumstances to that extent, I am inclined to allow the prayer of petitioner. O.P(C) No.2766 of 2011 -: 3 :- Resultantly, this Original Petition is allowed. The impugned order to the following extent is set aside and I.A. No.5066 of 2011 is allowed to the extent that petitioner is permitted to take out an Advocate commission to report on the local importance of the suit property as on the date of the disputed agreement and to assess value of the building in the suit property, if necessary with the assistance of an Expert (as on the date of the alleged agreement). If evidence of the respondent is already started it is directed that before closing the evidence of petitioner, learned Sub Judge shall depute an Advocate Commissioner to report as above stated. After the report is received, both parties may be permitted to adduce further evidence if any. I also make it clear that I have not expressed any final opinion on the relevancy of the report of the Commissioner or as to the probative value to be given to the facts reported, which are all matters the court below has to decide. Any observation as to the relevancy of the report, in this judgment will be confined to the disposal of this Original Petition. THOMAS P. JOSEPH, JUDGE. vsv