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2008 DIGILAW 4684 (MAD)

S. Karunanithi v. Tamilselvan & Another

2008-12-16

M.VENUGOPAL

body2008
Judgment :- 1. The revision petitioner/petitioner/plaintiff has filed this present civil revision petition as against the orders dated 111. 2008 in I.A.No.582 of 2008 in O.S.No.104 of 2004 passed by the learned Additional District Munsif, Tiruvannamalai in dismissing the application filed by the revision petitioner/petitioner/plaintiff under Order 26 Rule 9 of CPC praying for an appointment of an Advocate Commissioner to measure A and B Schedule properties with the help of the land surveyor and to file his report. 2. The trial Court, while passing orders in I.A.No.582 of 2008 has come to a conclusion that the revision petitioner/petitioner/plaintiff has filed an application for appointment of an Advocate Commissioner, belatedly and that on the side of the revision petitioner/petitioner/plaintiff witnesses have been examined and completed and at the time when the witnesses on the side of the respondents/respondents/defendants are being examined, the present application has been filed and resultantly dismissed the application. 3. According to the learned counsel for the revision petitioner/petitioner/plaintiff, the order of the trial Court passed in I.A.No.582 of 2008 in dismissing the application for appointment of an Advocate Commissioner is a one and as against the settled proposition of law and that the order of the trial Court is not a reasoned one and on the part of the revision petitioner/petitioner/plaintiff, there has been no dilatory tactics and to have a proper appreciation of the matter in issue, the application has been filed before the trial Court and these matters have not been looked into in the proper perspective and resulted in miscarriage of justice and therefore prays for allowing this revision petition in the interest of justice. 4. A perusal of the plaint filed by the revision petitioner/petitioner/plaintiff clearly indicates that the relief of permanent injunction has been sought for as against the defendants, their men and agents from in any way interfering with the plaintiffs peaceful possession and enjoyment of the "B" schedule property as a common pathway. However, in the affidavit filed in support of I.A.No.582 of 2008, it transpires that the revision petitioner/petitioner/plaintiff has prayed for an appointment of an Advocate Commissioner to measure "A and "B" schedule properties with the help of land surveyor and to file his report. 5. However, in the affidavit filed in support of I.A.No.582 of 2008, it transpires that the revision petitioner/petitioner/plaintiff has prayed for an appointment of an Advocate Commissioner to measure "A and "B" schedule properties with the help of land surveyor and to file his report. 5. It is to be noted that the power of a Court of law to appoint a Commissioner is a discretionary one, indeed the object of Order 26 Rule 9 of CPC is not to help the party to collect evidence, where the party himself can get the evidence himself. It is true that a Court of law cannot prevent the parties from producing best possible evidence to project their case. 6. As far as the present case is concerned, the object of the appointment of an Advocate Commissioner is in the nature of collecting evidence, which in the opinion of this Court can be taken before the trial Court and in that view of the matter, this Court comes to the inevitable conclusion that the application for appointment of an Advocate Commissioner is a luxury and not a case of necessity and resultantly this revision fails and the same is hereby dismissed in the interest of justice. 7. In the result, this civil revision petition is dismissed. The order passed by the trial Court in I.A.No.582 of 2008 in O.S.No.104 of 2004 is affirmed by this Court for the reasons assigned in this revision. The trial Court is directed to complete the proceedings of the main suit within a period of three months from the date of receipt of a copy of this order and to report compliance to this Court. The parties are directed to lend their cooperation to the trial Court to complete the main suit. There shall be no order as to costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.