C.S.I. Trust Association vs Pradeep Kennath

K.M. Joseph, J.—Petitioner is the plaintiff in O.S. 38 of 2005 before the Sub Court, Ottappalam. The suit is one for recovery of possession of suit properties and to cancel the compromise decree in A.S. No. 119 of 1971. The allegation is that it is obtained by fraud. The identity of the property is disputed. The plaintiff filed application to appoint a Commissioner. The petitioner/plaintiff gave work memo to the Commissioner and requested him to file the report ascertaining all facts requested. According to the petitioner, the Commissioner has not ascertained the vital details and filed the report. The plaintiff filed counter to the report and filed I.A. No. 331 of 2009 to set aside the commission report. It is stated that without considering the application the matter was posted in the list for trial on 4.3.2009. Petitioner filed Ext.P2 application to remove the suit from the list. But, the matter is adjourned. The suit is still in the ready list. The complaint of the petitioner is that the property is not properly identified and the Court should have considered I.A. No. No. 331 of 2009 on its merits and the decision to proceed with the trial without taking a decision in I.A. No. 331/2009 will cause injury to the petitioner.

I heard the learned Counsel for the petitioner and learned Counsel for the respondent. I notice that a learned Single Judge of this Court has already stayed further proceedings. It is also ordered that the stay order will not be a bar for considering the application for setting aside the commission report or any other interlocutory application. I would think that in the interest of justice the Court ought to have taken a decision in I.A. No. 331 of 2009 before entering upon the trial of the suit. Accordingly, I dispose of the writ petition by directing the Sub Court, Ottappalam to take up I.A. No. 331 of 2009 and take a decision thereon before the suit is taken up for trial.