IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-6-2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.R.P.NPD No.1675 of 2007 and MP No.1 of 2007 T.C.Dharmalingam .. Petitioner vs 1.S.Chinnasamy 2.Chandramoorthi .. Respondents Civil revision petition preferred under Sec.115 of the Code of Civil Procedure against the fair and decreetal order of the I Additional Subordinate Judge, Erode, in I.A.No.847/2006 in A.S.No.94/2006 dated 8.2.2007. For Petitioner : Mr.A.K.Kumaraswamy ORDER
An order of the I Additional Subordinate Judge, Erode, allowing an application in I.A.No.847/2006 for appointment of Advocate Commissioner is the subject matter of challenge.
2.The Court heard the learned Counsel for the revision petitioner.
3.It was a suit for bare injunction in respect of a channel having a width of 4 feet, in O.S.No.1426 of 2004. The District Munsif found that injunction could be granted only in respect of the channel having a width of 2 = feet. Aggrieved, the first respondent/plaintiff took it on appeal. Pending the appeal, I.A.No.847 of 2006 was filed seeking appointment of an Advocate Commissioner to measure the property of the defendants so that the availability of the channel and also its width could be fixed. It was contested by the revision petitioner; but, the learned Subordinate Judge thought it fit to appoint an Advocate Commissioner and accordingly, ordered. Aggrieved, the first defendant has brought forth this revision before this Court.
4.Advancing his arguments on behalf of the revision petitioner, the learned Counsel would submit that the lower Court was erroneous in appointing the Advocate Commissioner; that while the matter was pending before the trial Court, an Advocate Commissioner was appointed, who measured the property and placed all the physical features by way of a report before the Court; that only on appreciation of the same, the trial Court has come to the conclusion that injunction could be granted only in respect of a channel having a width of 2 = feet; that now, for the second time, an Advocate Commissioner was sought for, which should not be done; that it was a suit for bare injunction; that apart from that, the appointment of Advocate Commissioner was intended only to secure evidence; that under the circumstances, the lower Court should have dismissed the application, but not done so, and hence, the order of the lower Court has got to be set aside.
5.After hearing the learned Counsel for the petitioner and also looking into the materials available and in particular, the order under challenge, this Court is of the considered opinion that it is a fit case where the order of the lower Court appointing the Advocate Commissioner, has got to be sustained. In the instant case, it was a suit for bare injunction. It is also true that originally, an Advocate Commissioner was appointed to note the physical features, and he also filed the report. It has also been considered by the trial Court. The only contention that was raised by the first respondent/appellant before the appellate Court was that an Advocate Commissioner has got to be appointed for the reason that though he claimed injunction in respect of the channel having a width of 4 feet, the relief was granted only in respect of the channel having a width of 2 = feet; that the mistake that has crept in was that the defendants’ property was not properly measured, and had it been measured, the availability of the channel and its width namely 4 feet, would have been made clear; but, it was not done, and under the circumstances, Advocate Commissioner was to be appointed.
6.After hearing the learned Counsel for the petitioner and also looking into the materials available, this Court is of the opinion that the mistake that has crept in at the time of the inspection made by the Advocate Commissioner at the time of the trial, was that he has not measured either the properties of the defendants or the adjacent properties, and place the physical features before the Court properly. In such circumstances, in order to find out the physical features of the property in question and in particular, the channel and its width, it becomes necessary that the properties which are in Survey Nos.134 and 135 and also the property situated on the south all including that of the plaintiff, must be measured. While affirming the order of the lower Court, a direction is given to the lower Court to specifically mention in the commission warrant that the channel situated in Survey No.134, the property of the defendants situated in Survey No.135, and the property situated on the south including the plaintiff’s property, must be measured, and physical features could be noted properly. With this direction, this civil revision petition is disposed of. No costs. Consequently, connected MP is closed.
To:
The I Additional Subordinate Judge
Erode
nsv/