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2009 DIGILAW 3520 (MAD)

S. Subramanian & Another v. D. Ekambaram & Others

2009-09-02

K.K.SASIDHARAN

body2009
Judgment :- This civil revision petition is directed against the order dated 05.06.2009 in I.A.No.5042 of 2009 in O.S.No.2279 of 2007 on the file of the XII Assistant City Civil Court, Chennai whereby and whereunder the application filed by the revision petitioner for appointment of Advocate Commissioner was dismissed. 2. The suit in O.S.No. 2279 of 2009 was preferred by the revision petitioner against the respondents praying for a judgment and decree of declaration and consequential injunction in respect of the suit property. The suit was contested by the respondents by filing written statement wherein they have disputed the right, title interest and possession with respect to the suit property. The respondents have also taken a contention that there was an earlier suit in O.S.No.438 of 1997 filed by them on the file of the VII Assistant City Civil Court, Chennai and the suit was decreed and it was also confirmed as per the judgment and decree dated 29.09.2006 in A.S.561 of 2009. Since there was a clear finding in the earlier suit with respect to the ownership and possession claimed by the respondents with respect to the suit property, the present suit was not maintainable. 3. While the matters stood thus, the petitioner filed an application in I.A.No.5042 of 2009 for the purpose of appointment of Advocate Commissioner to inspect the suit property and to report about the physical features including the construction put up by the respondents. The said application was opposed by the respondents by filing counter wherein they have clearly stated that when the suit itself was not maintainable, it was not necessary to appoint Advocate Commissioner and the petitioner cannot be permitted to collect evidence through Advocate Commissioner. 4. The learned trial Judge was of the opinion that in view of the binding judgment and decree in O.S.No.4385 of 1997 which was confirmed by the judgment and decree in A.S.No.561 of 2005 the petitioner cannot be heard to say that he was in possession of the property. According to the learned trial Judge, the intention of the petitioner appears to be to collect evidence and a Commissioner cannot be appointed for such purpose. Accordingly the application was dismissed. It is the said order which is impugned in the present revision. 5. The suit in O.S.No.2279 of 2009 was instituted by the revision petitioner praying for a decree of declaration and injunction. Accordingly the application was dismissed. It is the said order which is impugned in the present revision. 5. The suit in O.S.No.2279 of 2009 was instituted by the revision petitioner praying for a decree of declaration and injunction. Therefore the primary burden was on the petitioner to prove that the suit property belongs to him. In such a suit and especially on account of the fact that there was no dispute with respect to the identity of the property, it was not necessary to appoint the Advocate Commissioner. According to the learned counsel for the revision petitioner, the respondents are making construction in the property and in case during the pendency of the suit, if third party interest would creep in, it would further complicate the matter. However that cannot be a reason for issuance of Advocate commission. Therefore the petitioner is not entitled for appointment of Advocate Commissioner in the present suit. 6. The learned trial Judge has gone into the merits of the suit in the interim application, itself. The application before the learned trial Judge was only for the purpose of considering the appointment of Advocate commissioner. Therefore the learned trial Judge was obliged to consider as to whether the appointment of Advocate Commissioner was necessary in the facts and circumstances of the case. There was no necessity for considering the entire merits of the matter including the so called binding judgment in the earlier matter. Therefore I am of the view that while considering the suit, the learned trial Judge has to decide the issues independently without in any way being influenced by the observations made in the order dated 05.06.2009 in I.A.No.5042 of 2009. 7. The civil revision petition is dismissed with the above observation. No costs. The connected miscellaneous petition is also dismissed.