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2009 DIGILAW 3694 (MAD)

R. Elango v. S. Kuppusamy & Others

2009-09-11

R.SUDHAKAR

body2009
Judgment :- First defendant has filed the civil revision petition challenging the order dated 14. 2009 passed by the first Additional Subordinate Judge, Erode, in I.A.No.740 of 2007 in O.S.No. 70 of 2007. 2. The suit is filed by the respondents/ plaintiffs for permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit property. Written statement has been filed on 18. 2008. The Suit in O.S.No. 70 of 2007 has been filed on 12. 2007. The plaintiffs seek right over the property consequent to the sale deed dated 19. 2004 registered as document No. 2326 of 2004 before the Sub Registrar, Perundurai. On 18. 2007, I.A.NO. 740 OF 2007 was filed by the first defendant/ revision petitioner for appointment of Advocate Commissioner to visit the suit property and to note down the physical features and take measurement of the property if necessary and to file a report. The said application was resisted by the respondents/ plaintiffs stating that the application for appointment of Advocate Commissioner is a belated endeavour to delay the adjudication of the case and to collect evidence. The description of the property in the suit schedule is very clear and unambiguous and therefore, there is no justification for the appointment of an Advocate Commissioner. The Court below having considered the rival contentions, rejected the application for appointment of Advocate Commissioner. Aggrieved thereby, the revision petition has been filed. 3. The case of the revision petitioner/ first defendant is that the defendants are in possession of the property even though the sale deed has been executed. The revision petitioner further states that while rejecting the application for appointment of Advocate Commissioner, the Court below came to the conclusion that the revision petitioner/ first defendant has not shown any document with regard to the possession. This according to the revision petitioner will affect the final out come in the trial as the Court has already concluded that the possession was not with the revision petitioner/ first defendant. 4. The suit is based on a sale deed of the year 2004 said to have been executed by the first defendant, who is the revision petitioner herein. The respondents/ plaintiffs have filed the suit for permanent injunction. The details of the property has already been set out in the suit schedule. 4. The suit is based on a sale deed of the year 2004 said to have been executed by the first defendant, who is the revision petitioner herein. The respondents/ plaintiffs have filed the suit for permanent injunction. The details of the property has already been set out in the suit schedule. The reason for filing the application for appointing an Advocate Commissioner in the suit filed by the respondents/ plaintiffs does not appear to be bonafide in the facts of the present case. The revision petitioner, who claims to be in possession has to prove the same by oral and documentary evidence and not by way of a report of the Advocate Commissioner. This will be contrary to law and judicial precedents. In such circumstances, the Court below is justified in rejecting the application. 5. As far as the apprehension raised by the learned counsel for the revision petitioner that the finding in paragraph 9 of the order under challenge may affect the ultimate out come of the suit is concerned, it has to be emphasized that the trial Court has to consider the oral and documentary evidence that may be relied upon by the rival parties and decide the issue independently and impartially without being influenced by any observation made in the order in the Interlocutory application. This will not be relevant for the final adjudication of the suit. 6. The counsel for the revision petitioner and the respondents submit that the suit itself can be taken up and disposed of at an early date. Therefore, the trial Court is directed to take up the suit for final hearing and dispose of the same as expeditiously as possible preferably before the end of January 2010 if the suit is otherwise ready for trial. Finding no merits, this civil revision petition is dismissed. Consequently, M.P.No. 1 of 2009 is also dismissed. No costs.