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2008 DIGILAW 4063 (MAD)

M. Easwari v. Vijayakumar & Others

2008-11-06

M.VENUGOPAL

body2008
Judgment :- This revision petition is filed by the revision petitioner/petitioner/plaintiff aggrieved against the order dated 13. 2008 in I.A.No.135 of 2008 in O.S.No.279 of 2004 passed by the District Munsif, Sathyamangalam. 2. The main grievance of the revision petitioner/petitioner/ plaintiff is that the revision petitioner/petitioner/plaintiff has filed I.A.No.464 of 2004 under Order 26 Rule 9 of CPC praying for an appointment of Advocate Commissioner and that the Commissioner has inspected the property on two occasions and measured the extent but since the Commissioner has not filed report as well as plan, the trial Court has dismissed the said application on 12. 2007 and directed the Commissioner to return the warrant and the fact remains that the Commissioner has not filed his report in the matter in issue and therefore prays for allowing the revision petition. It is to be stated that the revision petitioner/petitioner/plaintiff has filed I.A.No.135 of 2008 to restore I.A.No.464 of 2004 which has been dismissed by the Court below on 12. 2007. 3. Before the trial Court, the 4th respondent herein has filed a counter inter alia stating that an order has been obtained in regard to conduct of the suit in O.S.No.279 of 2004 along with O.S.No.203 of 1998 and that in order to delay the case proceedings, an application for appointment of Advocate Commissioner has been projected and that the reasons assigned by the revision petitioner in the said application I.A.No.135 of 2008 are false and if the application is allowed by the Court below then it will cause untold hardship and loss to him and therefore prays for dismissal of the application. 4. On going through the order passed in I.A.No.135 of 2008, it is quite evident that the trial Court has observed that when the measurement has not been completely done, then the prayer of the revision petitioner/petitioner/plaintiff asked for in the said Interlocutory application cannot be granted and in that view has consequently dismissed the said application. 4. On going through the order passed in I.A.No.135 of 2008, it is quite evident that the trial Court has observed that when the measurement has not been completely done, then the prayer of the revision petitioner/petitioner/plaintiff asked for in the said Interlocutory application cannot be granted and in that view has consequently dismissed the said application. Furthermore, a reading of the order of the trial Court passed in I.A.No.135 of 2008, do indicates that the revision petitioner/petitioner/plaintiff has not taken any steps for the past four years so as to enable the Advocate Commissioner to complete the work of measuring the suit property and that the reasons assigned in I.A.No.135 of 2008 as if the mistake lies on the Commissioners part to restore I.A.No.464 of 2004 are false, as informed by the respondents side before the trial Court. 5. Even though the revision petitioners approach is lackadaisical in the present case, without going into the merits of the matter, inasmuch as the processual justice must be employed in aid of deliverance of substantial justice overriding the technical considerations and since the Commissioners report only remains to be filed in the matter, this Court allows this revision petition so that Judiciary is respected not on account of its power to legalise injustice on technical grounds but it is capable of removing injustice and is expected to do so to prevent aberration of justice, leaving the parties to bear their own costs. 6. In fine, this civil revision petition is allowed and the order passed in I.A.No.135 of 2008 in O.S.NO.279 of 2004 is set aside. Consequently,I.A.No.135 of 2008 in O.S.No.279 of 2004 is allowed and the trial Court is directed to restore I.A.No.464 of 2004 to its file and the revision petitioner/petitioner/plaintiff is directed to take effective and efficacious diligent steps in the matter avoiding a laissez-faire attitude and proceed further in the manner known to law. Consequently, connected M.P.No.1 of 2008 is closed.