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2007 DIGILAW 1924 (MAD)

C. Rajavel & Another v. Periyasamy & Another

2007-06-27

M.CHOCKALINGAM

body2007
Judgment :- Challenge is made to an order of dismissal made by the Principal Subordinate Judge, Virudhachalam, in I.A.No.179 of 2006 seeking appointment of an Advocate Commissioner pending the appeal in A.S.No.29 of 2006 which arose from the judgment and decree of the trial Court of the said place in O.S.No.702 of 2004. 2.The Court heard the learned Counsel on either side. 3.It was a suit for declaration and recovery of possession. Pending the suit, an Advocate Commissioner was appointed by the trial Court, who on notice to both sides, made an inspection of the property and filed the report before the trial Court. Thereafter, on trial, the suit was decreed. The defendants aggrieved over the same, took it on appeal in A.S.No.29/2006 pending on the file of the Principal Subordinate Judge, Virudhachalam. Pending that appeal, the instant application in I.A.No.179/2006 was filed for appointment of Advocate Commissioner. On contest, that application was dismissed. Hence, this revision before this Court at the instance of the aggrieved defendants. 4.The only contention what was urged by the petitioners side before the Court below and equally here also is that the issues could not be decided without identifying the property properly; that the adjacent properties belonging to the persons namely Kalian and Krishnan respectively, were to be identified, and then only the property in question could be properly identified and the issue whether the relief could be granted or not could be decided. After giving opportunity to both sides, the learned Subordinate Judge took the view that it is not a fit case where the Advocate Commissioner could be appointed and thus, he dismissed the application. 5.The same contention is reiterated by the learned Counsel for the petitioners before this Court. 6.The Court heard the opposite party also. After doing so and looking into the materials available, this Court is of the considered opinion that it is not a fit case where the Court could interfere in the order of the lower Court for more reasons than one. 7.It is not in controversy that an Advocate Commissioner was appointed before the trial Court, and after notice, the inspection was made by him. A reading of the Commissioners report would indicate that the property in question was identified with the assistance of both the parties. 7.It is not in controversy that an Advocate Commissioner was appointed before the trial Court, and after notice, the inspection was made by him. A reading of the Commissioners report would indicate that the property in question was identified with the assistance of both the parties. It is pertinent to point out that no objection was raised to the Commissioners report by the petitioners who sought for appointment of Advocate Commissioner before the appellate forum. Having failed to do so, now, they cannot call the Commissioners report as defective or infirm or come forward to say that again an Advocate Commissioner has got to be appointed. The contention that the properties situated adjacent to the suit property, have got to be measured requires rejection for the simple reason that in order to grant a relief in respect of the property, the property namely the subject matter of the suit, was to be identified. According to the Commissioner, appointed by the trial Court, the same was identified with the assistance of both the parties. Under the circumstances, no question of appointment of another Commissioner for the same purpose would arise. The lower Court was perfectly correct in dismissing the application. The order of the lower Court has got to be sustained, and accordingly, it is sustained. 8.In the result, this civil revision petition is dismissed. No costs. Consequently, connected MP is also dismissed.