IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(P.D) No.4228 of 2008 and M.P.No.1 of 2008 1. Radha 2. Sidharathan 3. Vasantharaj .. Petitioners -vs- 1. Palayammal 2. Deivanayagi 3. Madurai Mani .. Respondents This civil revision petition is filed under Article 227 of Constitution of India, against the order and decretal order dated 14.10.2008 passed in I.A.No.1451 of 2008 in O.S.No.273 of 1999 on the file of the Principal District Munsif, Poonamallee. For Petitioners : : Mr.V.Raghavachari O R D E R
The revision petitioners/petitioners/defendants 1 to 3 have filed this present civil revision petition as against the order dated 14.10.2008 in I.A.No.1451 of 2008 in O.S.No.273 of 1999 passed by the learned Principal District Munsif, Poonamallee in dismissing the application filed by the revision petitioners/petitioners/defendants 1 to 3 under Order 26 Rule 9 of CPC praying for an appointment of Commissioner to cause a local inspection and to file his report.
2. The trial Court, while passing orders in I.A.No.1451 of 2008 in O.S.No.273 of 1999 has inter alia observed that ‘ An Advocate Commissioner cannot be appointed to collect evidence on behalf of the parties and under the guise of seeking the Advocate Commissioner to find out the suit property lies as mentioned by the revision petitioners, they want the Advocate Commissioner to gather evidence to substantiate their case and has resultantly dismissed the application.
3. A perusal of the plaint filed by the respondents/plaintiffs clearly spells out that in the suit , a relief of permanent injunction has been prayed for against the defendants, their men, agents etc., from trespassing into the suit property and thereby interfering with peaceful possession and enjoyment of the plaintiffs.
4. However, in the I.A.No.1451 of 2008 in O.S.No.273 of 1999 filed by the revision petitioners/petitioners/defendants 1 to 3 before the trial Court in paragraph 3, they have inter alia averred that the revision petitioners/petitioners/defendants 1 to 3 claim that they are in possession of the suit property by virtue of partition letter dated 25.3.1990 and that they have their terrace house on the northern portion, thatched house in the middle portion, well in the southern portion and dung pit at the southern end of the suit property etc.,
5. The respondents/plaintiffs have filed a counter stating that the said application is not maintainable and that the application has been filed to drag on the suit proceedings and that an Advocate Commissioner is not a competent person to speak about the possession of the suit property.
6. It is to be noted that the plaintiffs are not claiming possession of the suit property. Admittedly, an appointment of Commissioner by a Court of law is purely a discretionary one . It cannot be gain said that the parties to the litigation can produce the best possible evidence to project/substantiate their case before the Court. But an Advocate Commissioner cannot be appointed to gather/procure evidence, when the parties to the litigation themselves can produce the same.
7. On going through the order of the trial Court in dismissing the application for appointment of an Advocate Commissioner, this Court is of the considered view that the trial Court has exercised its discretion in a proper effective way and the application filed by the revision petitioners/petitioners/defendants 1 to 3, praying for an appointment of Commissioner is only a luxury and not a case of M.VENUGOPAL,J
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necessity or absolute necessity and in that view of the matter, this revision petition is dismissed without costs.
8. In the result, this civil revision petition is dismissed. The order passed by the trial Court in I.A.No.1451 of 2008 in O.S.No.273 of 1999 is affirmed by this Court for the reasons assigned in this revision. There shall be no order as to costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.
23.12.2008
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To the Principal District Munsif,Poonamallee
CRP.PD.NO.4228/2008