RAVIKUMAR Vs. KESUKKUTTAN NAIR

JUDGEMENT

(1.) The writ petition is filed seeking mainly the following relief:

(2.) I heard the counsel on both sides. At the time of hearing, the learned counsel appearing for the respondents fairly submitted that the essential ingredients to satisfy the stay of the suit as contemplated under Section 10 of the Code of Civil Procedure are not made out in the present case, and so much so, the order of the court below for staying the trial of the suit, for the reasons stated in Ext.P4 order, cannot be sustained. I appreciate the stand taken by the learned counsel for the respondents, as I find that without even affording an opportunity to the plaintiff, while deciding on the merit of a Commission Application, the court has jumped to a conclusion that the suit is liable to be stayed under Section 10 of the CPC, for the reason that other proceedings are pending in respect of the very same subject matter before a court and also before the Appellate Authority under the Land Reffjrms Act. Whether the issues involved in the present case were directly and substantially involved in the other proceeding was not considered by the court while passing the order of stay of trial of the suit. The order passed by the court below directing stay of the suit, in the circumstances, is liable to be set aside, and it is ordered accordingly. The reasonings of the court below that in view of a previous commission report in a connected suit as between the parties, the commission application moved by the plaintiff in the present suit cannot be allowed as expressed in Ext.P4 order, I find cannot be accepted as correct. The Commission report collected in a suit after all is only a piece of evidence. In the very same suit, a second commission without deciding the merit of the former commission report, if identical matters are sought for determination again is impermissible, as covered by the decision in Swami Premananda Bharathi v. Swami Yogananda Bharathi, 1985 KerLT 144 But, in a different suit, even assuming that in respect of the very same property as between the same parties, a Commissioner had collected a report in a previous suit by itself will not debar one or other party from applying for a commission to collect the details required for the adjudication of the disputes or controversies involved in that suit or proceeding. Of course, the evidentiary value of the previous commission report can be canvassed in trial, provided, it has been accepted in evidence in the other suit. Even if it is not accepted by examining the Commissioner, who prepared it, the report can be let in as a piece of evidence in the subsequent case as well. But the mere fact that in another suit, a commission had been taken previously in respect of the very same property between the parties so long as the decision in that suit would bot constitute a bar of the present suit under any law for the time being in force, is not sufficient to hold that a fresh commission cannot be allowed in the subsequent suit Irrespective of the question whether a commission report is collected in the present suit, it is open to the defendants to canvas the evidentiary value of the previous commission report in respect of the very same property in a suit between the same parties, but, to dismiss a commission application on the ground that another report had been collected in a previous suit, is not proper and correct, so long as the trial of the present suit is not barred in any way by the decision in the previous suit. So much so, I direct the learned Sub Judge to consider the commission applicable afresh in the light of the observations made above, and in accordance with law and dispose the application on its merit. Writ petition is disposed as indicated above.