BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/12/2010 CORAM THE HON'BLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD)(MD)No.2024 of 2010 and M.P.(MD)No.1 of 2010 Paraman .. Petitioner/Plaintiff/ Petitioner Vs. 1.Ponraj 2.Chitammal .. Respondents/Defendants Respondents PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India, against the order dated 07.07.2010 made in I.A.No.42 of 2009 in O.S.No.75 of 2008, on the file of the District Munisif, Theni. !For Petitioner ... Mr.A.V.Arun ^For Respondents ... Mr.B.Rajesh Saravanan :ORDER
The Civil Revision Petition is directed against the order dated 07.07.2010
in I.A.No.42 of 2009 in O.S.No.75 of 2008, on the file of the learned District
Munsif, Theni, whereby and whereunder, the application filed by the petitioner
for appointment of an Advocate Commissioner was dismissed.
2.The Suit in O.S.No.75 of 2008 was preferred by the petitioner praying
for a decree of injunction restraining the respondents from letting the drainage
water from his property to the property of the petitioner. The Suit was
contested by the respondents by filing written statement.
3.Subsequently the matter was taken up for trial. In the meantime, the
petitioner filed an application in I.A.No.42 of 2009 for appointment of an
Advocate Commissioner to prove that the respondents are letting the drainage
water in the petitioner’s property. The said application was contested by the
respondents mainly on the ground that there was no pleadings to substantiate his
contention, in the application in I.A.No.42 of 2009.
4.The learned trial Judge was of the view that the basic facts necessary
for issuing a commission for the purpose of inspecting the property and to
verify as to whether there was actually letting drainage water in the
petitioner’s property, were missing in the plant. In any case, the learned
trial Judge opined that there was no necessity for issuing commission for the
purpose for which it was sought for by the petitioner. Accordingly, the
application was dismissed. It is the said order, which is impugned in this
Civil Revision Petition.
5.The learned counsel for the petitioner submitted that though it is a
Suit for injunction, for an effective adjudication of the matter, the
appointment of Advocate Commissioner is absolutely necessary. According to the
learned counsel, the fact that the respondents have denied the letting of
drainage water in the property of the petitioner was not taken note of by the
trial Judge and as such, the order requires interference.
6.The learned counsel for the respondents justified the order passed by
the learned trial Judge. The learned counsel for the respondents further
contended that there was no act of encroachment as alleged against the
respondents and as such, the learned trial Judge was perfectly justified in
rejecting the application.
7.The Suit filed by the petitioner in O.S.No.75 of 2008 was admittedly a
Suit for injunction. There is nothing on record to show that the respondents
were guilty of encroachment. The affidavit filed in support of the application
in I.A.No.42 of 2009 proceeds as if there was an act of encroachment and as
such, the Commissioner should be directed to inspect the property and to report
about the letting the drainage water in the property belonging to the
petitioner. The petitioner cannot be permitted to collect evidence and to
project as if there was an act of encroachment. The learned trial Judge was
perfectly correct in his finding that the petitioner has not made out a case for
appointment of an Advocate Commissioner. I do not see any reason to interfere
in the said order by exercising the supervisory jurisdiction. Accordingly, the
Civil Revision Petition is dismissed. Consequently, the connected miscellaneous
petition is also dismissed. No costs.
MPK
To
The District Munsif,
Theni.