IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 OP(C).No. 288 of 2011(O) I.A.NOS.4508/2010 AND 4509/2010 IN O.S.NO.664 OF 2009 OF ADDITIONAL MUNSIFF'S COURT, KOLLAM. PETITIONERS ----------------------- 1. NISAM, S/O.MUHAMMED KUNJU, VALIYAMAMOOTIL VEEDU, THATTAMALA P.O. MAYYANADU, KOLLAM REPRESENTED BY POWER OF ATTORNEY JALALUDEEN, S/O.MUHAMMED KUNJU, PADINJATTEKKARA PUTHEN VEEDU, KOOTTIKKADA, MAYYANADU, KOLLAM 2. JALEENA, AGED 29 YEARS, D/O.JALALUDEEN, RESIDING AT VALIYAMAMUTTIL VEEDU, THATTAMALA P.O., MAYYANADU VILLAGE, KOLLAM BY ADV. SRI.S.SUDHEESHKAR SRI.ACHAN KUNJU. RESPONDENT: --------------- SREEDEVI, D/O.VIJAYANANDAN NAIR, AGED 37 YEARS, NOW RESIDING AT PLAVILA VEEDU, (UTHIRATHU), MANGALATHU NAGAR - 81 KILIKOLLOOR P.O., KOLLAM-691 503. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 288 OF 2011 O ------------------------------------------------------ Dated this the 21st day of January, 2011 JUDGMENT The petitioners, defendants in O.S.No.664 of 2009 on the file of the Court of the Munsiff of Kollam, are aggrieved by Ext.P3 order dated 13.10.2010, by which, the court below allowed the application for appointing a Commissioner to measure out the plaint schedule property. 2. There was an earlier suit which was decreed in favour of the respondent/plaintiff. The present suit is filed by the respondent/ plaintiff for recovery of possession. In the suit, the defendants filed an application to remove the case from the list on the ground that an application was filed in the earlier suit to set aside the exparte decree passed therein. The court below was not inclined to remove the case from the list. The trial went on. After conclusion of trial, the plaintiff filed I.A.Nos.4509 of 2010 and 4508 of 2010 for accepting certified copy of a document and to appoint a Commissioner. The court below by Ext.P3 order dated 13.10.2010 appointed a Commissioner, which is under challenge in this Original Petition. O.P.(C) NO.288 OF 2011 O :: 2 :: 3. The court below stated in the order that though the application was belated, to avoid further litigation between the parties and to get the correct facts of the case, it is necessary to appoint a Commissioner. The suit is of the year 2009. Even the defendants wanted time, since they were prosecuting an application to set aside the exparte decree passed earlier. The court below allowed the present application on costs to the petitioners herein. Discretion was exercised by the court below in allowing the application for appointing a Commissioner. It cannot be said that the order passed by the court below is illegal or without jurisdiction. No grounds are made out for interference under Article 227 of the Constitution of India. The Original Petition is, accordingly, dismissed. (K.T.SANKARAN) Judge ahz/