Procedure must be followed in court, requiring written responses before additional commissions are appointed for property inspections.

JUDGMENT

Aggrieved by Ext.P8 order passed in I.A. No.8/2022 in O.S. No.134/2022 by the Court of the I Additional Munsiff, Ernakulam, the plaintiffs in the suit have filed the original petition. The respondents are the defendants in the suit.

2. The facts leading to Ext.P8 order, in brief, are: the petitioners have filed the above suit against the respondents to declare that the plaint schedule item No.4 property is for the common utility of the petitioners and others and that the respondents have no right to obstruct its free user. The petitioners had filed I.A. No.2/2022, for an order of temporary injunction, and I.A. No.3/2022, to appoint an Advocate Commissioner. The court below allowed I.A. No.3/2022, on the date of filing of the suit and the Advocate Commissioner inspected the property and filed his report. However, I.A.No.2/2022 got adjourned from time to time for different reasons. Highlighting the urgency to hear I.A. No.2/2022, the petitioners filed I.A.No.5/2022 to advance the hearing. The respondents made an attempt to obstruct the user of item No.4 property. The matter was not heard. Pursuant to Ext.P2 order passed by this Court, the court below, passed Ext.P3 order in I.A No.2/2022. The suit was adjourned to 21.11.2022, for the written statement of the respondents. Then, the respondents filed I.A. No.8/2022 (Ext.P5), to appoint an Advocate Commissioner to measure and demarcate the plaint schedule properties with the assistance of a surveyor. The court below advanced the hearing of the application and without affording the petitioners to file their objection, allowed Ext.P5, by the impugned Ext.P8 order. Ext.P8 is erroneous and unsustainable in law. Hence, the original petition.

3. Heard; Sri.K.C. Vincent, the learned Counsel appearing for the petitioners and Sri. S. Sreekumar, the learned Senior Counsel appearing for the respondents.

4. The question is whether there is any illegality in Ext.P8 order.

5. The suit is filed, inter alia, to declare that item No.4 property is for common utility of the petitioners and others and that the respondents have no right to obstruct their free user of the said pathway.

6. Admittedly, the court below had appointed an Advocate Commissioner, who had filed a report as per the order in I.A. No.3/2022.

7. Pursuant to Ext.P2 order passed by this Court in O.P.(C)No.762/2022, the court below passed Ext.P3, order of temporary injunction, as prayed for in I.A.No.2/2022.

8. While matters stood so, without even filing an objection to the commission report or filing a written statement in the suit, the respondents filed Ext.P5 application to take an Advocate Commissioner to ascertain certain matters. The court below, by Ext.P8 order, allowed Ext.P5 application and directed the Advocate Commissioner to elucidate the matters sought for in Ext.P5 application with the assistance of a surveyor.

9. I find the course and procedure adopted by the court below to be thoroughly erroneous, particularly because the court below has on the mere asking of respondents, appointed a new Advocate Commissioner, without the respondents even filing their written statement in the suit or an objection to the commission report. It was up to the respondents to have put up their defence in the written statement before they could aspire for another Advocate Commissioner. Nevertheless, as the learned counsel for the petitioners submitted that the petitioners also require a survey commission to be taken out, particularly since the suit is one for fixation of boundary and to declare the common utility of the pathway, I feel a quietus can be given to the original petition by modifying Ext.P8 order, which would do complete justice to both sides.

In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India , I allow the original petition as follows:-

(i) Ext.P8 order is modified to the extent of permitting the petitioners and the respondents to file their work memo before the Adv