IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.2.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).No.3585 of 2008 and M.P.No.1 of 2007 K.Girija @ Shanmugavalli ... Petitioner vs. S.Dakshinamoorthy ... Respondent This civil revision petition is filed against the order dated 6.9.2008 passed in I.A.No.2253 of 2008 in O.S.No.124 of 2003 by the District Munsif Court, Alandur. For Petitioner : No appearance For Respondent : No appearance ORDER
Inveighing the order dated 6.9.2008 passed in I.A.No.2253 of 2008 in O.S.No.124 of 2003 by the District Munsif Court, Alandur, this civil revision petition is focussed.
2. A ‘resume’ of facts absolutely necessary and germane for the disposal of this civil revision petition would run thus:
The revision petitioner/plaintiff filed the suit O.S.No.124 of 2003 seeking the following relief:
“to grant permanent injunction restraining the defendant, his servants, men and agents or any other persons claiming under defendant from in any manner interfering with the plaintiff’s peaceful possession and enjoyment of the suit ‘A’ and ‘B’ schedule properties.”
Earlier the plaintiff filed the I.A. and got the Commissioner appointed. The Commissioner also, after visiting the suit property and measuring the same, submitted his report. Whereupon the respondent/defendant filed objections and the revision petitioner once again filed the I.A.No.2253 of 2008 seeking the following reliefs:
“to remit back the warrant of Advocate Commissioner and direct the Taluk Surveyor assisting the Advocate Commissioner to identify locate and physically fix the village boundary stones and survey stones and thereon proceed to words determining the boundary of Survey No.123 and Survey No.124 and thereon fixed and locate the suit schedule property and pass such further orders as it may deem fit and proper in the circumstance of the case.”
The lower Court after hearing both sides dismissed the I.A.
3. Being aggrieved by and dissatisfied with the said order this civil revision petition is focussed by the plaintiff on various grounds inter alia thus:
the earlier Commissioner has not measured the property with the help of Taluk Surveyor and with reference to the Revenue Records and maps. The survey stone was not located and accordingly, the warrant should be remitted back to the Advocate Commissioner for revisiting the suit property and for measuring the same afresh as aforesaid.
4. Despite printing the names of both sides repeatedly, no one represents. Hence, I proceed to decide the matter based on the materials available.
5. Indubitably and unassailably the suit itself is for declaration and injunction. It is virtually a settled proposition of law that in injunction suits, normally, Advocate Commissioner should not be appointed for carrying out measurements and such like measures, because the very fact that the plaintiff has chosen to file such a suit pre supposes that the plaintiff is having a specific case of her own; and that relating to a specific known extent in the possession of the plaintiff, she wants injunction so as to restrain the defendant. At times, for noting the physical features alone, Commissioner could be appointed in such suits and that too, without assigning the task of finding out as to who is in possession of the suit property. When such is the legal position, here the lower Court, leniently appointed earlier an advocate Commissioner. However, as observed by the lower Court clearly the plaintiff was not co-operative with the Commissioner to measure the property in such a water logged area and subsequently when the Commissioner, with the help of Surveyor went to measure the property, there was non co-operation on the side of the plaintiff. I could see no reason to doubt the observations made by the lower Court as against the petitioner’s non-co-operative attitude.
6. The suit itself is of the year 2003. It appears, already there was a direction by this Court for speedy disposal. The plaintiff is insisting upon locating the Survey stones, which according to the observation of the lower Court, the plaintiff was not co-operative in locating the same when the Commissioner visited the suit property. The lower Court also observed that with the available report of the Advocate Commissioner, the case could be decided. Hence, in these circumstances, repeatedly the same Commissioner or fresh Commissioner cannot be ordered to visit the suit with the help of Revenue officials for measuring the suit property and locating the same.
7. To the risk of repetition without being tautalogous, I would like to highlight and spotlight that in a suit for declaration and injunction, the plaintiff cannot call upon the Court to appoint an Advocate Commissioner, so as to enable the plaintiff to get located the suit property and thereby gather evidence in support of his case.
8. Considering pro et contra, I could see no infirmity in the order passed by the lower Court and there is no merit in this civil revision petition. Accordingly this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.
Msk
To
The District Munsif Court,
Alandur