IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16-04-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD)No.1415 of 2010 and M.P.No.1 of 2010 1.Sengoda Gounder 2.Palani Ammal 3.Ramasamy 4.Mallika 5.Suresh .. Petitioners/Respondents/ /Defendants Versus 1.Ramasamy 2.Ravi .. Respondents/Petitioners/ Plaintiffs PRAYER: Petition filed under Article 227 of the Constitution of India, praying to set aside the order dated 24.02.2010 passed in I.A.No.1466 of 2009 in O.S.No.331 of 2009 on the file of the District Munsif Court, Sankari. For Petitioners : Mr.P.Jagadeesan For Respondents : Mr.T.Karunakaran O R D E R
This Civil Revision Petition has been filed against the order, dated 24.02.2010, made, in I.A.No.1466 of 2009, in O.S.No.331 of 2009, on the file of the District Munsif Court, Sankari.
2.The petitioners herein are the defendants in the suit, in O.S.No.331 of 2009, filed by the respondents. The suit, in O.S.No.331 of 2009, had been filed for a decree of permanent injunction, against the defendants and others, restraining them from, in any manner, putting up the construction over the suit common cart track, as denoted in the plaint ‘B’ schedule property. The plaintiffs in the suit, who are the the respondents in the present Civil Revision Petition, had filed an interlocutory application, in I.A.No.1466 of 2009, praying for the appointment of an advocate commissioner to visit the suit property, with the help of a qualified surveyor and to file his report with a plan drawn to scale and also to note down the physical features of the suit property, in particular, the cart track. The trial Court, by its order, dated 24.02.2010, had appointed an advocate commissioner, as prayed for in I.A.No.1466 of 2009 and had directed him to execute the warrant, fixing the date of visit, on 13.03.2010.
3.Aggrieved by the said order, the petitioners have filed the present Civil Revision Petition, before this Court, under Article 227 of the Constitution of India.
4. The learned counsel appearing on behalf of the petitioner had submitted that the trial Court had erred in allowing the interlocutory application, in I.A.No.1466 of 2009, filed under Order XXVI Rule 9 and Section 151 of the Civil Procedure Code, 1908, for appointment of an advocate commissioner to visit the suit property, with the help of a qualified surveyor, and to file the report thereon, along with the plan.
5.It had been submitted that the trial Court had erred in considering the objections raised by the petitioners for the appointment of the advocate commissioner. It had been stated that the appointment of the advocate commissioner was not necessary, considering the facts of the case. It had further stated that the trial Court had failed to note that the respondents had not explained as to why the ‘B’ schedule property should be measured with the help of a surveyor. The respondents cannot gather evidence by requesting for the appointment of an advocate commissioner, since, the suit, in O.S.No.331 of 2009, is only for a permanent injunction.
6. The learned counsel appearing on behalf of the respondents had submitted that the trial court is right in allowing the interlocutory application, in I.A.No.1466 of 2009, for the appointment of an advocate commissioner to note down the physical features of the suit schedule property. The objections raised by the petitioners are unsustainable, as it is always open to them to raise further objections to the report to be filed by the advocate commissioner, if they are advised to do so.
6. In view of the submissions made by the learned counsels
M.JAICHANDREN J.
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appearing on behalf of the parities concerned and in view of the records available, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to interfere with the order, dated 24.02.2010, made in I.A.No.1466 of 2009. The order of the learned District Munsif, Sankari, dated 24.02.2010, appointing the advocate commissioner, to note down the physical features of the suit property and to file the report thereon, cannot be setaside, at this stage. However, it would be open to the petitioner to raise further objections, if any, after the filing of the report by the advocate commissioner concerned. As such, this Civil Revision Petition is devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
Index:Yes/No 16-04-2010
Internet:Yes/No
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To
The District Munsif Court,
Sankari.
C.R.P.(PD)No.1415 of 2010