GOPALAKRISHNAN Vs. JANAKI AMMA

JUDGEMENT

(1.) The 3rd defendant tenant is the petitioner in this civil revision. The suit was filed by the 1st respondent plaintiff, the landlord of the building, for a prohibitory injunction to restrain the 2nd respondent (1st defendant in the suit) - Trichur Municipality from granting licence to the petitioner and the 3rd respondent for conducting an ice factory in the plaint schedule building let out to them and for a mandatory injunction directing respondents 1 and 3 to remove the electric motors installed in the building and to restore it to its original position. The Trial Court dismissed the suit. The Ist respondent took the matter in appeal. The Additional District Judge, Trichur who heard the appeal was of the view that the report of the Advocate Commissioner deputed by the Trial Court 'is not sufficient to decide whether the working of the ice factory in the plaint schedule room is destructive or injurious to the building'. Hence the lower appellate court accepted the request of the appellant's counsel for an expert commission. Therefore, the court deputed the Advocate Commissioner appointed by the Trial Court and also appointed an Assistant Engineer of the PWD. to make a joint inspection of the shop room and submit 'a report as to whether the working of the ice factory in the shop room is destructive or permanently injurious to the plaint schedule building'. The hearing of the appeal was accordingly adjourned by the court.

(2.) It is the above order of the lower appellant court that is challenged by the 3rd defendant tenant in this civil revision. The petitioner filed a CMP. to allow him to raise an additional ground that the lower appellate court should have considered the maintainability of the suit as a preliminary issue and decided the same. Two points arise for consideration in this case. They are: (1) Whether the appellate court can consider the maintainability of the suit as a preliminary issue and give a decision; and (2) whether the appellate court can depute the commissioner appointed by the Trial Court to submit a further report with the assistance of an expert if the circumstances of the case warrant for the same and can this be done without setting aside the report already submitted by the commissioner.

(3.) O.14 R.2 of the Civil Procedure Code reads: