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2008 DIGILAW 4752 (MAD)

Mrs. Aandal & Others v. A. Anthony

2008-12-19

M.VENUGOPAL

body2008
Judgment :- 1. The revision petitioners/petitioners/defendants have projected this civil revision petition as against the order dated 21.08.2008 in I.A.No.1084 of 2008 in O.S.No.277 of 2006 passed by the Principal District Munsif, Poonamallee in dismissing the application filed by the revision petitioners under Order 26 Rule 9 of Civil Procedure Code praying the trial Court to remit back the warrant to the same Advocate Commissioner, for the purpose of inspecting the suit property with the help of Taluk Surveyor, and to measure the property and to file his report. 2. The trial Court, while passing orders in I.A.No.1084 of 2008, has inter alia opined that the Advocate Commissioner earlier has taken the assistance of the Taluk Surveyor and demarcated all the properties and measured the suit property by fixing survey stones and boundaries, as evidenced from his report and plan and also substantiated by P.W.2, the Taluk Surveyor and has resultantly dismissed the application. 3. The learned counsel for the revision petitioners urges before this Court that the order passed by the trial Court in dismissing the application for an appointment of a Commissioner is vitiated by material irregularity and illegality and further that the trial Court has not taken note of the fact in the present application filed by the revision petitioners, they have prayed for remitting back the warrant to the same Advocate Commissioner which fact has not been taken note of by the trial Court in proper perspective and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice. 4. Before the trial Court, the second defendant, who has filed the affidavit in I.A.No.1084 of 2008, has specifically averred that the learned Advocate Commissioner who inspected the suit property along with surveyor has properly identified the suit property and that the respondent/ plaintiff has not given linear measurements etc. The respondent/plaintiff has filed a counter taking a categorical plea that the Advocate Commissioner along with the Taluk Surveyor has already inspected the suit property, identified and measured the same with reference to all revenue records and has filed his report with sketch and surveyors plan on 21.09.2007 itself, for which no objections have been filed by the revision petitioners/ defendants and when the case has been posted for revision petitioners/defendants side evidence, the present application has been filed by the petitioners to drag on the matter. 5. 5. It is not in dispute that before the trial Court the main case is at part-heard stage. Equally, it is an admitted fact that in regard to the fact that an Advocate Commissioner has already inspected the suit property and has surveyed the suit property along with the assistance of surveyor and has given his report. When in the main suit the trial has commenced and when the matter has reached the stage of defendants side evidence, the present application I.A.No.1084 of 2008 has been filed to protract/stall the main proceedings, in the considered opinion of this Court. At this stage, the learned counsel for the respondent/ plaintiff brings it to the notice of this Court that in the main suit, the arguments were heard and the matter stands slated to 02.01.2009, for pronouncement of Judgment. 6. In the instant case on hand, inasmuch as already the Advocate Commissioner has been appointed, who has inspected the property and has given his detailed report with the help of surveyor and also the surveyor having filed his report, for which no objections have been filed so far to those reports by the revision petitioners and on taking note of the overall assessment and cumulative attendant facts and circumstances of the case, this Court is of the considered view that an application I.A.No.1084 of 2008 praying for the relief in remitting back the warrant to the same Advocate Commissioner to inspect the suit property etc., is not a case of necessity or an absolute necessity and per contra, this Court is of the considered view that it is only a luxury or a supernumerary one and in that view of the matter, the civil revision petition fails and the same is hereby dismissed. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is also dismissed.