Kerala High Court
S.Jayakumar vs Chandrika.K on 29 March, 2023
OP(C) NO. 812 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
OP(C) NO. 812 OF 2023
AGAINST THE ORDER IN I.A. 4/2022 IN O.S. 39/2022 OF PRINCIPAL
SUB COURT / COMMERCIAL COURT, KOZHIKODE
PETITIONER/PETITIONER/PLAINTIFF:
S.JAYAKUMAR
AGED 58 YEARS
S/O. SREEDHARA PANICKER, SREEDHAREEYAM HOUSE,
KALAPPANA P.O, KOLLAM DISTRICT REP BY PA HOLDER
V.T.VINODHAN, AGED 60 YEARS S/O KUNJIKRISHNAN
NAIR,SILENT VALLEY HOUSE,ERAVATTOOR P.O.
KIZHINJANYAM,KOYILANDY TALUK KOZHIKODE DISTRICT, PIN
- 673525
BY ADVS.
M.PROMODH KUMAR
MAYA CHANDRAN
GOPI KRISHNAN N.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 CHANDRIKA.K
AGED 83 YEARS
W/O K.NANU PANICKER, KUNNUMMAL HOUSE, MADATHIL
MUKKU, NELLIKODE P.O, KOZHIKODE, PIN - 673016
2 INDIRA
AGED 65 YEARS
D/O. K. NANU PANICKER, KUNNUMMAL HOUSE, MADATHIL
MUKKU, NELLIKODE P.O, KOZHIKODE, PIN - 673016
3 SUGUNAN
AGED 61 YEARS
S/O. K. NANU PANICKER, KUNNUMMAL HOUSE, MADATHIL
MUKKU, NELLIKODE P.O, KOZHIKODE, PIN - 673016
4 UDAYAN
AGED 57 YEARS
S/O. K. NANU PANICKER, KUNNUMMAL HOUSE, MADATHIL
MUKKU, NELLIKODE P.O, KOZHIKODE, PIN - 673016
OP(C) NO. 812 OF 2023
2
5 MEENAKUMARI
AGED 54 YEARS
D/O. K. NANU PANICKER, KUNNUMMAL HOUSE, MADATHIL
MUKKU, NELLIKODE P.O, KOZHIKODE, PIN - 673016
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 812 OF 2023
3
JUDGMENT
Aggrieved and dissatisfied with Ext.P5 order passed
in I.A No.4/2022 in O.S No.39/2022 by the Court of the
Subordinate Judge, Kozhikode, the plaintiff in the suit has
filed the original petition. The respondents are the
defendants in the suit.
2. The concise background facts leading to Ext.P5
order are:
(i). The petitioner has filed the suit against the
respondents for a decree of specific performance of an
agreement dated 7.6.2018.
(ii) The suit is resisted by the respondents through
Ext.P2 written statement.
(iii) In Ext.P2 written statement, the respondents
have denied the execution of the agreement. They have
also alleged that the description of the property scheduled
in the plaint is incorrect and the property is situated near
OP(C) NO. 812 OF 2023
Thondayad bypass road having a market value of
Rs.20,00,000/- per cent in the year 2018.
(iv) In view of the stand taken by the respondents in
the written statement, the petitioner was compelled to file
I.A No.4/2022 (Ext.P3) to depute an Advocate
Commissioner to identify the property, report about the
nature of the property, the existence of a kalari and idols
etc. The application was resisted by the respondents
through Ext.P4 counter affidavit.
(v) The court below, by the impugned Ext.P5 order,
has rejected Ext.P3 application.
(vi) Ext.P5 order is ex-facie illegal, unjust and
improper. Hence, the original petition.
3. Heard; Sri.M.Promodh Kumar, the learned
counsel appearing for the petitioner, on admission.
4. The short point is, whether there is any error in
Ext.P5 order warranting interference by this Court.
OP(C) NO. 812 OF 2023
5. The petitioner's case in the plaint is that, the
respondents have agreed to sell the plaint schedule
property, by agreement of sale dated 17.6.2018, for a
sale consideration of Rs.5,50,000/- per cent for item No.1
property and Rs.60,000/- per cent for item No.2 property,
that an advance sale consideration of Rs.1/- crore was
paid and that it was agreed that the sale deed would be
executed in three months. However, the respondents
have failed to execute the sale deed within the stipulated
time period compelling the petitioner to file the suit.
6. The suit is resisted by the respondents, inter alia,
denying the execution of the agreement of sale and
disputing the description of the plaint schedule property.
The respondents case is that the actual value of the
property is higher than what is shown in the agreement
of sale.
7. It was in the above background that the
petitioner filed Ext.P3 application to appoint an Advocate
OP(C) NO. 812 OF 2023
Commissioner to elucidate the identity, lie, nature and
other details of the property. The application was stoutly
resisted by the respondents through Ext.P4 counter
statement.
8. The court below, after appreciating the rival
pleadings had held that the appointment of Advocate
Commissioner is unnecessary and unwarranted because
the substantial issue in the suit is the execution and
genuineness of the agreement of sale.
9. Section 75 read with Order 26 of the Code of
Civil Procedure delineates the circumstances under which
commissions can be issued.
10. An Advocate Commissioner is an officer of the
Court and not an agent of the party.
11. On a reading of the averments in Ext.P3
application, it can be gathered that the petitioner wants to
disprove the contentions raised by the respondents,
particularly with regard to the execution of the agreement
OP(C) NO. 812 OF 2023
of sale, the lie and location and the value of the property.
12. The above exercise is beyond the scope of the
provisions in the Code.
13. The onus of proof to prove the execution and
genuineness of the agreement of sale is on the shoulders
of the petitioner. If the petitioner can prove and establish
the ingredients under the Specific Relief Act, then he
would be entitled to a decree as provided under the Act.
Nonetheless, the appointment of the Advocate
Commissioner cannot help the petitioner to disprove and
discredit the defence of the respondents.
14. On an overall appreciation of the pleadings and
materials on record, this Court is of the definite view that
the court below was perfectly justified in concluding that
the appointment of an Advocate Commissioner was
unwarranted. The court below has not exceeded its
powers of authority warranting interference by this Court
under Article 227 of the Constitution of India.
OP(C) NO. 812 OF 2023
The original petition is merit-less and is hence
dismissed.
Sd/- C.S.DIAS
ma/29.3.2023 JUDGE
OP(C) NO. 812 OF 2023
APPENDIX OF OP(C) 812/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITIONER'S PLAINT IN OS
NO. 39/2022 DATED 14/03/2022.
Exhibit P2 TRUE COPY OF THE RESPONDENT'S WRITTEN
STATEMENT IN OS NO. 39/2022 DATED
13/07/2022
Exhibit P3 TRUE COPY OF THE IA 4/2022 IN OS NO.
39/2022 DATED 04/11/2022. FILED BY THE
PETITIONER BEFORE THE SUB COURT,
KOZHIKODE.
Exhibit P4 TRUE COPY OF THE RESPONDENT'S COUNTER IA
4/22 IN OS NO. 39/2022 DATED 03/12/2022.
Exhibit P5 TRUE COPY OF ORDER OF THE SUB COURT,
KOZHIKODE DATED 23/02/2023 IN IA 4/2022 IN
OS NO. 39/2022
