IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 WP(C).No. 27319 of 2008(B) -------------------------- AGAINST THE ORDER DATED 14-07-2008 IN IA.2462/2008 IN OS.113/2007 of ADDL.M.C.,KOZHIKODE-I .................... PETITIONER: ------------ 1. P.SOUMINI, D/O SANKARAN, AGED 64, RESIDING AT PUTHOOR NIVAS, KARAPARAMBA, KOZHIKODE -10. 2. ANOOPKUMAR.P, S/O LATE P.KUNHADI, AGED 34, RESIDING AT PUTHOOR NOVAS, KARAPPARAMBA, KOZHIKODE -10. 3. VINODKUMAR O, S/O LATE P.KUNHADI, AGED 31, RESIDING AT PUTHOOR NIVAS, KARAPPARAMBA, KOZHIKODE -10. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: ------------- C.K. SHAHEEDA, D/O U.K. ABOOBACKER, W/O P.C. BASHEER, AGED 40, RESIDING AT BREEZE, ERANHIPALAM P.O., VENGERI VILLAGE, NEDUNGOTTOOR DESOM OF KOZHIKODE TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C) NO. 27319 of 2008 * * * * * * * * * * * * * * * * * * Dated: 15-09-2008 JUDGMENT The petitioners in this Writ Petition filed under Art. 227 of the Constitution of India are the plaintiffs in O.S. 113 of 2007 on the file of the Ist Addl. Munsiff Court, Kozhikode. The respondent herein is the defendant in the said suit which was one for a mandatory as well as prohibitory injunction. At the instance of the plaintiffs an Advocate Commission was issued by the court below for local inspection and report. The Commissioner, a lady, filed the report and plan before the court. Thereafter the petitioners filed I.A. 842 of 2008 to set aside the plan and report of the Commissioner. The said application was dismissed by the court below. Aggrieved by the order of the court below the petitioners filed W.P.C. 9896 of 2008 before this Court. This Court disposed of the Writ Petition without setting aside the report and plan of the W.P. ( c) No. 27319 of 2008 -:2:- Commissioner and observed as follows: “Therefore I permit the petitioners to adduce evidence against the commissioner's plan and report which they are attacking and if the court is convinced that the said plan and report are not helpful to the Court for a proper disposal of the matter, then certainly the court shall either remit suit, or set aside the report, call for a new report and dispose of the matter in accordance with law. For the said purpose the plaintiff can recall himself and examine the commissioner to prove correctness of the report. Needless to say the other side must be permitted to adduce evidence in support of their respective contentions”. 2. Thereafter, the petitioners filed I.A. No. 2462/2008 before the Court below to issue a direction to compel the presence of the Advocate Commissioner for her examination before Court and until then to keep further proceedings in the matter in abeyance. As per the impugned order, the said application has been dismissed. It is the said order which is assailed in this Writ Petition. 3. Apart from the fact that the Advocate Commissioner who was admitted in the hospital for delivery had to undergo a surgical operation and is not available to be examined before Court immediately, the order passed by this Court in W.P.C. 9896 of 2008 has W.P. ( c) No. 27319 of 2008 -:3:- permitted the petitioners to adduce evidence against the Commissioner's plan and report which they are attacking. Hence, it was for the petitioners to initially adduce evidence against the plan and report. The insistence made by the petitioners to examine the Commissioner as the first witness was rightly turned down by the learned Munsiff. It has also been observed in the impugned order that if the plan and report are to be set aside or remitted, it may be done after the evidence of the plaintiffs and the Commissioner. Hence the request of the petitioners to examine the Commissioner first cannot be acceded to. With this observation, this Writ Petition is dismissed. Dated this the 15th day of September 2008. V. RAMKUMAR, (JUDGE) ani. W.P. ( c) No. 27319 of 2008 -:4:-