Judgment 1. The defendants in O.S.No.208 of 1991 on the file of District Munsifs Court, Madurai Taluk, have preferred the revision aggrieved against the order of dismissal in I.A.No.24 of 1998, dated 25.9.1998. 2. The petitioners/defendants filed a petition under O.26, Rule 9 of the Code of Civil Procedure, for appointment of a Commissioner for local inspection preferably by the previous Commissioner, directing him to identify and locate the properties purchased by the plaintiffs and the defendants in survey No.401/1 after fixing the boundaries and also to locate the disputed property with reference to the sale deeds of both parties and to note the other things that may be pointed out by the parties at the time of inspection and to submit a report with plan. 3. The respondents/plaintiffs opposed the application, and after hearing both sides, the lower court dismissed the petition and aggrieved against this, the present revision is filed. 4. The learned counsel for the petitioners/defendants contended that the court below was not justified in dismissing the commission petition. The appointment of a Commissioner is essential to determine and resolve the controversy in the suit. The dismissal of the petition on the ground that no description of property is given is incorrect. The trial court also failed to note that the commission warrant issued on previous occasion could not be executed due to reasons beyond control of the parties and the learned Commissioner himself has stated that the entire suit property and the adjacent property are full of rain water and there is difficulty in locating the survey stones. 5. Heard the learned counsel on either side. 6. The petitioners/defendants filed a petition under O.26, Rule 9 of the Code of Civil Procedure, for appointment of a Commissioner. The respondents/plaintiffs opposed the application on the ground that already on their application, a Commissioner was appointed in I.A.No.474 of 1992 and a report was also filed. Subsequently, the respondents filed I.A.No.390 of 1994 for re-issue of the commission warrant to measure the property and that was also carried out. The petitioners filed I.A.No.158 of 1995 for an appointment of a Commissioner and the Commissioner inspected the property and submitted to a report. The main objection put forward by the respondents is that number of applications are filed by the petitioners only to protract the litigation and the Commissioner cannot be appointed to locate or identify the disputed property. The petitioners filed I.A.No.158 of 1995 for an appointment of a Commissioner and the Commissioner inspected the property and submitted to a report. The main objection put forward by the respondents is that number of applications are filed by the petitioners only to protract the litigation and the Commissioner cannot be appointed to locate or identify the disputed property. 7. The respondents/plaintiffs filed a suit for declaration that the suit property belongs to them absolutely and also they are seeking recovery of vacant possession after removal of the superstructure. The suit was filed in the year 1991. No doubt, a Commissioner was already appointed in this case on the application filed by the respondents and report was also filed. Again an interim report was also filed by the Commissioner in I.A.No.158 of 1995. Subsequently, I.A.No.158 of 1995 was closed by the trial court on the ground that the Commissioner has returned the warrant stating that in view of the prevailing situation, the work could not be carried out. It is necessary to state that the petitioners preferred C.R.P.No.3547 of 1997 against the orders of closing the commission application and this Court by an order dated 9.1.1998, dismissed the civil revision petition with an observation that if the parties desire and if they make out a case, it is always open to them to seek further direction from the trial court. 8. The petitioners filed I.A.No.24 of 1998 thereafter, only for an appointment of the Commissioner for the aforesaid purpose, The trial court dismissed the application on two grounds viz., that the description of property is not given in the petition and again the appointment of a Commissioner cannot be made for locating or identifying the property. No doubt, the Commissioner had inspected the property on more than one occasion, But the last application filed by the petitioners was closed by the trial court on the ground that there was full of water and the property cannot be measured and survey stones also cannot be located. It is only under such circumstances, the earlier petition was closed and even though the revision filed by the petitioners was dismissed, liberty was given to them to file a fresh application, if necessary. The petitioners have made use of the same and filed I.A.No.24 of 1998. 9. It is only under such circumstances, the earlier petition was closed and even though the revision filed by the petitioners was dismissed, liberty was given to them to file a fresh application, if necessary. The petitioners have made use of the same and filed I.A.No.24 of 1998. 9. When number of applications were already filed, the dismissal of I.A.No.24 of 1998 on a technical ground that the description of property has not been incorporated in the petition is not correct. The survey number is mentioned in the petition itself and, moreover, the inspection by the previous Commissioner has also been sought by the petitioners. So far as the second objection is concerned, it is not proper to dismiss the application on this ground. In fact, the earlier application I.A.No.158 of 1995 itself was filed for a similar purpose and that was allowed, but because of reasons beyond control, the petition was closed. When there is dispute relating to the parties with reference to identity and location, it is just and necessary that the Commissioner be directed to measure the property with the help of a qualified surveyor and also find out the area of dispute, so that much of oral evidence can be reduced. The petitioners are not at fault for the closure of I.A.No.158 of 1995 and under the circumstance, considering the dispute involved in the case, it is just and necessary that the same Commissioner can be appointed for local inspection, directing him to carry out the object mentioned in I.A.No.24 of 1998. By allowing this application, no prejudice will be caused to the respondents but irrespective of the result of the suit, the entire expenses has to be met only by the petitioners. 10. For the reasons stated above, the revision petition is allowed and the order passed by the trial court in I.A.No.24 of 1998 is set aside and the petition is allowed. The trial court is directed to appoint the same Commissioner for local inspection and to note the other features as pointed out in the petition with the help of a qualified surveyor. The expenses payable to the Commissioner has to be exclusively met by the petitioners irrespective of the result of the case. The trial court is directed to appoint the same Commissioner for local inspection and to note the other features as pointed out in the petition with the help of a qualified surveyor. The expenses payable to the Commissioner has to be exclusively met by the petitioners irrespective of the result of the case. The Commissioner is also directed to complete the entire work within a period of three months from the date of receipt of the warrant and both parties are directed to co-operative with the Commissioner in executing the warrant. No costs. Consequently. C.M.P.No.19283 of 1998 is closed. The trial court is directed to expedite the trial of the case in a period of four months.