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2008 DIGILAW 4108 (MAD)

K. Palanirajan v. Rajeswari & Others

2008-11-10

M.VENUGOPAL

body2008
Judgment :- The revision petitioner/plaintiff/petitioner has filed the present revision aggrieved against the order dated 20.11.2007 passed in I.A.No.1418 of 2007 in O.S.No.89 of 2006 on the file of District Munsif, Panruti in dismissing the application filed under Order 26 Rule 9 of CPC praying for an appointment of an Advocate Commissioner to inspect the suit property and to note down the physical features and also to measure the suit property with the help of a Surveyor and to find out as to whether there is any demarcation for 0.59 ½ cents in the suit property and to file his report with plan. 2. The trial Court, while passing orders in I.A.No.1418 of 2007 in O.S.No.89 of 2006, has inter alia observed that in regard to the suit property in question already a preliminary decree has been passed in O.S.No.143 of 2000 and in I.A.No.350 of 2006 filed for passing a final decree, an Advocate Commissioner has been appointed and that the suit property has been identified with the help of a Village Administrative Officer and the same has been measured and report and plan has been filed and thereafter, the delivery has been effected and resultantly dismissed the said application. 3. The learned counsel appearing for revision petitioner urges before this Court that the order of the trial Court passed in I.A.No.1418 of 2007 in O.S.No.89 of 2006 is contrary to law and that the trial Court has not appreciated property in regard to the fact that O.S.No.143 of 2000 has no bearing to the present proceedings and that the revision petitioner/plaintiff is not a party to the said O.S.No.143 of 2000 and further that the Commissioners report in O.S.No.143 of 2000 cannot at all be used to the facts and circumstances of the present case and in the present case before us, the trial has not commenced and this aspect of the matter has not been taken note of by the trial Court and therefore prays for allowing the revision petition in furtherance of substantial cause of justice. .4. .4. The learned counsel appearing for the first respondent submits that in I.A.No.1418 of 2007 in O.S.No.89 of 2006 filed by the revision petitioner/plaintiff is not maintainable in law and in O.S.No.143 of 2000, a preliminary decree has been passed and in the final decree application in I.A.No.390 of 2004, an Advocate Commissioner has been appointed and he has identified the suit properties with the help of the Village Administrative Officer and has worked out the share of the first respondent as 0.59 1/2 cents and allotted the same on the southern side of the suit first item and resultantly a final decree has been passed on 2. 2005 and in the said Commissioners report in respect of 0.59½ cents out of Ac. 1.41 cents in S.No.793/1, the same has been marked as "ABCD" and taken delivery through the Court Amin as early as on 29. 2005 and therefore the order passed by the trial Court need not be interfered by this Court sitting in revision. 5. This Court has paid its anxious consideration to the argument advanced by the learned counsel on either side and noticed their contentions. 6. It is an axiomatic fact that the aim of local investigation is not to collect evidence, which can be taken in the Court. If a party can obtain the evidence by himself then there is no need for an appointment of an Advocate Commissioner in the considered opinion of this Court. However, an appointment of an Advocate Commissioner is purely a discretionary remedy but the Court has to exercise the same with utmost care and caution. 7. As far as the present case is concerned, a perusal of the plaint in O.S.No.89 of 2006 pending on the file of learned District Munsif, Panruti clearly indicates that the revision petitioner/plaintiff has prayed for a relief of declaration that the delivery for a portion of the suit property in favour of the first respondent/first defendant dated 29. 2005 in E.P.No.106 of 2005 in O.S.No.143 of 2000 on the file of District Munsifs Court, Panruti is only a paper delivery and for the relief of permanent injunction. Admittedly, in O.S.No.89 of 2006 on the file of District Munsif, Panruti, the trial has not commenced. At that stage, the revision petitioner/plaintiff has filed I.A.No.1418 of 2007 praying for an appointment of an Advocate Commissioner under Order 26 Rule 9 of CPC. Admittedly, in O.S.No.89 of 2006 on the file of District Munsif, Panruti, the trial has not commenced. At that stage, the revision petitioner/plaintiff has filed I.A.No.1418 of 2007 praying for an appointment of an Advocate Commissioner under Order 26 Rule 9 of CPC. The revision petitioner/plaintiff claims to be a cultivating tenant. .8. Now the learned counsel appearing for the revision petitioner/plaintiff contends that in O.S.No.143 of 2000, the revision petitioner/plaintiff is not a intense party to the said proceedings and that any preliminary decree or final decree passed therein will not bind the revision petitioner/plaintiff and therefore the trial Court placing a reliance to the said final decree proceedings in O.S.No.143 of 2000 is of no avail. 9. On a careful consideration of respective contentions, this Court is of the considered view that even though the revision petitioner/plaintiff is not a party to the proceedings in O.S.No.143 of 2000 yet in I.A.NO.350 of 2006 in O.S.No.143 of 2000, an Advocate Commissioner has been appointed and he has identified the suit property with the help of the Village Administrative Officer and after measuring of the suit property has submitted his report and plan and later delivery of the property has been effected on 29. 2005 and the same has been recorded by the concerned Executing Court in E.P.No.106 of 2005. In that view of the matter, this Court comes to the conclusion that the present application is a luxury, redundant one and the same is not a bonafide one and on the basis of facts and circumstances of the case, this Court opines that it is open to the revision petitioner/plaintiff to tender evidence in the main case in regard to the suit property and resultantly, the civil revision petition fails and the same is hereby dismissed. 10. In fine, this revision petition is dismissed and the order passed in I.A.No.1418 of 2007 in O.S.No.89 of 2006 on the file of the District Munsif, Ponruti is confirmed. It is informed that the pleadings in the main case O.S.No.89 of 2006 have been completed and the stage is set for trial after framing necessary issues. Therefore, this Court issues a direction to the District Munsif, Panruti to dispose of O.S.No.89 of 2006 within a period of three months from the date of receipt of a copy of this order. NO costs. Consequently, connected M.P.No.1 is also dismissed.