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2008 DIGILAW 3597 (MAD)

Sayed Mohammed v. Asiya Mariyam & Others

2008-09-26

M.VENUGOPAL

body2008
Judgment :- Common Order: 1. These Civil Revision Petitions are filed by the petitioner/plaintiff as against the common order dated 011. 2006 in I.A.Nos.207 and 208 of 2006 in O.S.No.92 of 2005 passed by the learned District Munsif, Sirkali, in dismissing the said applications. 2. The revision petitioner/plaintiff has filed I.A.No.207 of 2006 under Order 26 Rule 9 and 10 of Civil Procedure Code, to re-open I.A.No.232/2005, which was closed on 29.04.2005. 3. The revision petitioner/plaintiff has also filed another interlocutory application in I.A.208 of 2006 before the trial court, to re-open I.A.No.232/2005 and to re-issue warrants to the Advocate and Surveyor and to direct them to measure an extent of South-North 16 x East-West 125 as per the sale deed dated 211. 1993 of Mohammed Kasim and also on the basis of the plaintiffs documents and to submit a new report and plan. 4. The respondents have filed counter, inter alia, stating that the report has been filed only after leaving an extent of South-North 16, 15 in the western side and east-west 185 as per the sale deed of Mohammed Kasim, the husband of 1st respondent and even if it is measured after leaving the same, the respective portions enjoyed by the parties will not change and the applications filed are opposed to law and therefore, prays for dismissal of the same. 5. The trial court, after contest, has passed an order, inter alia, stating that the scope of the suit is revolving on a narrow compass and that no prayer has been sought for to scrap the earlier Commissioners report and that the plaintiffs claim is that he is in exclusive possession and enjoyment of the suit property and therefore, the applications are devoid of merits and resultantly dismissed the same with costs. 6. This Court has noticed the respective contentions and given anxious consideration to the arguments advanced on either side. 7. It is pertinent to point out that a Court of law is not supposed to allow the application for appointment of Commissioner or to re-issue the same, where the parties can themselves get the evidence on the points for which they seek re-opening of the matter and re-issue of the warrants. In fact, the aim of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence, where he himself can get the evidence. In fact, the aim of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence, where he himself can get the evidence. Of course, no court of law can prevent a party from letting in the best evidence possible in the given case based on facts and circumstances of the case. 8. It cannot be forgotten that allowing the applications for re-open and re-issue are the discretion of a court of law and a court of law is at liberty to exercise the said power at any stage of the suit for elucidating any matter in controversy. 9. In the instant case, on a careful consideration of respective contentions, this Court is of the considered view that even after leaving the portion sold by Mohamed Kasim, as per the sale deed dated 211. 1993, the extent in possession and occupation of the respective parties will not change and the remedy of Order 26 Rule 9 of Civil Procedure Code cannot be resorted to by a litigant to gather evidence, which, in fact, he himself can obtain and also bearing in mind of another fact that the suit is filed only for an injunction, this Court is not inclined to allow the civil revision petitions. 10. Since there is no illegality or irregularity in the order passed by the trial court, both the civil revision petitions are hereby dismissed in the interests of justice. Before parting, it is made clear that it is open to the revision petitioner to adduce best evidence possible in this regard at the time of trial of the suit and to seek his remedy in accordance with law. Consequently, connected M.P.is closed. Considering the facts and circumstances of the case, there shall be no order as to costs.