IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 WP(C).No. 19544 of 2004(B) -------------------------- PETITIONER: ------------ C.R.BIJU, NADUVILEPUZHA HOUSE, KADAYATHOOR P.O. BY ADV. SRI.P.C.HARIDAS RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, LAW DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. BALAKRISHNAN NAIR, CHENNAKKATTU KUNNEL, KIZHAPARAYAR KARA, POOVARANY VILLAGE. R1 BY GOVT. PLEADER SMT. R.BINDU R2 BY ADV. SRI.R.PADMARAJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 19544/04 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. PLAINT IN OS 187/2002 DT. 26.8.02 EXT.P2. WRITTEN STATEMENT IN OS 187/02 DT. 15.1.03 EXT.P3. COMPROMISE IN OS 91/00 DT. 9.8.00 EXT.P4. COMMISSION APPLICATION DT. 16.8.03 EXT.P5. OBJECTION TO THE COMMISSION APPLICATION EXT.P6. PETITION SEEKING EARLY HEARING OF THE PRELIMINARY ISSUES DT. 3.12.03 EXT.P7. ORDER IN IA 1288/03 DT. 19.6.04 EXT.P8. ORDER IN IA 1857/03 DT. 19.6.04 /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 19544 OF 2004 --------------------- Dated this the 1st day of January, 2008 J U D G M E N T This writ petition is filed seeking to set aside Exts.P7 and P8 orders. Ext.P7 is the order passed in IA 1288/03 and Ext.P8 is the order passed in IA 1857/03. In IA 1288/03 the court did not allow the request of the defendant to ascertain certain matters which they want the Commissioner to look into. The court held that it can be looked into only at the time of evidence and afterwards. I think the approach by the court below is erroneous. When a suit is filed and a Commissioner is appointed, it is permissible for both sides to ascertain things which they want in order to substantiate their contentions in the suit. Therefore I modify the order of the trial court and direct that court to instruct the Commissioner to note the particulars required by the defendant as well. In order to avoid complications, I direct both the plaintiff and defendants to file detailed work memo before the Commissioner and the Commissioner be directed to look into those and submit the plan and report. So far as IA 1857/03 is concerned, it is true that under the amended CPC under Order XIV Rule 2 a WPC NO 19544/04 2 question of jurisdiction etc., can be considered as a preliminary issue but when it is mixed question of fact and law, evidence may be necessary and in such cases, direction cannot be given to take it as a preliminary issue. The court below has held that in order to adjudicate the maintainability, appreciation of evidence by both sides are necessary. So at this stage this court cannot direct to consider the question of maintainability. Therefore, the writ petition is disposed of in the above lines as indicated in the judgment. M.N.KRISHNAN, JUDGE vps WPC NO 19544/04 3