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ABOOBACKER v. ADIMAKUTTY - WP(C) No. 10095 of 2006(B)  RD-KL 1464 (31 October 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 10095 of 2006(B)
1. ABOOBACKER. S/O.SULAIMAN, KARAPPAM
1. ADIMAKUTTY, S/O.MOHAMMED,
For Petitioner :SRI.P.K.RAVISANKAR
For Respondent :SRI.P.SANJAY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR,J.W.P.(C) .NO. 10095 OF 2006 Dated 31st October 2006
Petitioner is fourth defendant in O.S.1244/92 on the file of Sub court, Thrissur. He is challenging Ext.P5 order passed by learned Sub Judge dismissing an application for appointment of commission, in this petition filed under Article 227 of Constitution of India. Respondent is plaintiff. Suit was instituted for specific performance of an agreement for sale executed by first defendant in his favour. Contention of petitioner is that he is a bonafide purchaser from first defendant and has made valuable improvements by constructing a building worth Rs.40 Lakhs and question whether petitioner has made improvements is a relevant fact to be considered by the court below while considering whether discretionary relief of specific performance is to be granted.
2. On hearing learned counsel appearing for 2 petitioner and going through Exts.P1 to P5, I find no reason to interfere with the order dismissing the application for appointment of a commission. Even according to petitioner he purchased the property only after institution of suit. Being a transferee period, even if petitioner has made any improvements that will not entitle him to claim any advantage or disentitle the respondent from claiming the relief. Hence the question whether petitioner has effected such improvements is not a relevant fact to be decided in the suit. If that be so, there is no necessity to appoint a commission as sought for. Hence no interference is warranted in Ext.P5 order. Grievance of petitioner is that in Ext.P5 order there is an observation that as suit stands decreed as against defendants 1 to 3, petitioner is not entitled to raise any contention. It is made clear that petitioner is entitled to raise all available contentions in the suit and learned Sub Judge has to consider them while disposing the suit. Writ petition is dismissed. 3 M.SASIDHARAN NAMBIAR,
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