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2009 DIGILAW 4884 (MAD)

G. M. Rajagopal v. Nagarathinam

2009-11-13

M.VENUGOPAL

body2009
Judgment :- The petitioner/plaintiff has filed this Civil Revision Petition as against the order dated 04.08.2009 in I.A.No.8719 of 2009 in O.S.No.4909 of 2008, under Order 26 Rules 9 and 10 of Civil Procedure Code praying for appointment of an Advocate Commissioner to measure the suit property with the help of Taluk Surveyor by relying on the Field Map Book and other records. 2. The trial Court while passing order in I.A.No.8719 of 2009 dated 04.08.2009 has inter alia opined that already an Advocate Commissioner was appointed in I.A.No.11388 of 2008 who has inspected the suit property and filed the report on 18.09.2008 and that the said I.A was closed and the said report of the Advocate Commissioner is on record and the same has not been scrapped and further there has been no request for re-issue of the Commissioner Warrant to inspect the suit property with the help of Taluk Suveyor in accordance with the Field Map Book and other records as prayed for and moreover there is no explanation on the side of the petitioner/plaintiff as to how this application being successive in nature, is maintainable and moreover when the suit itself is for the relief of a bare injunction, the petitioner/plaintiff has not given any reason either convincing or compelling for the appointment of an Advocate Commissioner for the second time and found no merits in the application and resultantly, dismissed the said application, without costs. .3. .3. According to the learned counsel for the revision petitioner/plaintiff, the trial Court has committed an error in observing that I.A.No.8719 of 2009 has been filed in successive nature when the petitioner has not sought for appointment of an Advocate Commissioner to measure the suit property which has already been measured by the Advocate Commissioner in I.A.No.11388 of 2008 in O.S.No.4926 of 2009 and the fact remains that the revision petitioner has filed O.S.No.4909 of 2008 and the subject matter of the suit has to be adjudicated by the Court and added further the petitioner has assigned reasons in I.A.No.8719 of 2009 for appointment of an Advocate Commissioner and earlier report has not elicited the correct boundaries of the suit property and therefore, the revision petitioner has projected I.A.No.8719 of 2009 before the trial Court and also that the trial Court has failed to appreciate that the petitioner and the respondent are the adjacent owners and without measuring suit property of the revision petitioner, the Court cannot completely and fairly adjudicate the dispute/controversy involved in the suit, but these aspects of the matter have not been adequately appreciated by the trial Court in a real perspective which has resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in the interest of justice. 4. Per contra, the learned counsel for the respondent/defendant contends that the revision petitioner/plaintiff has already filed an application in I.A.No.11388 of 2008 praying for appointment of an Advocate Commissioner to inspect the suit property and to note down the physical features and the same has been allowed by the trial Court and further that a report has been filed and the same is on record of the Court and that be the factual position of the matter, the petitioner/respondent has come out with another application in I.A.No.8719 of 2009 praying for appointment of an Advocate Commissioner to measure the suit property with the help of Taluk Surveyor by relying on the Field Map Book and other records etc., is clearly a redundant one and therefore, prays for dismissal of the application. 5. It is to be noted that the Advocate Commissioners report is not per se and evidence before the Court at best the report of the Advocate Commissioner can be considered by the trial Court along with the other evidence available on record. 5. It is to be noted that the Advocate Commissioners report is not per se and evidence before the Court at best the report of the Advocate Commissioner can be considered by the trial Court along with the other evidence available on record. If a party is able to get the evidence at the spot itself then it is for him to prove necessary facts before the Court of Law in an appropriate manner. Certainly the aim and purport of Order 26 Rule 9 of Civil Procedure Code is not to proceed party in order to procure or gather evidence. 6. One cannot ignore an important fact that the revision petitioner/plaintiff has filed the present suit in O.S.No.4909 of 2008 praying for the relief of permanent injunction restraining the defendant or his men etc., from interfering with peaceful possession and enjoyment of the suit property bearing Door No.80 of 2006, N.M.K. Street, Ayanavaram, Chennai 23 without adopting any due process of law. Admittedly, the suit is in part-heard stage. 7. It is brought to the notice of this Court that P.W.1 is to be cross-examined. It also comes to be known that an application has been taken out on behalf of the revision petitioner/plaintiff before the trial Court for adding certain documents and the same has been allowed. It appears that as on date P.W.1 has to be cross-examined. Added further, already the Advocate Commissioner has submitted his report in I.A.No.11388 of 2008 in O.S.No.4926 of 2008 after noting down the physical features of the suit property for which an objection has also been filed and those materials are very much available before the trial Court on record. Though an earnest endeavour has been made on behalf of the revision petitioner/plaintiff that O.S.No.4926 of 2008 has been filed by the respondent in the revision petition as plaintiff before the trial Court which is for a declaration that the plaintiffs are absolute owners of the item No.3 of the suit property mentioned in the schedule of the plaint morefully and particularly and also for permanent injunction and that the present suit in O.S.No.4909 of 2008 filed by the revision petitioner/plaintiff is for permanent injunction, it is to be borne in mind that in both the suits, the joint trial has been ordered and both the suits are in part-heard stage viz., P.W.1 has to be cross examined. .8. .8. Be that as it may, taking note of the fact that both the suits are pending at the part-heard stage and P.W.1 has to be cross examined and also bearing in mind another fact that already Advocate Commissioner has been appointed in I.A.No.11388 of 2008 in O.S.No.4926 of 2008 and further that the Advocate Commissioner submitted a report for which an objection has been filed, till date the said report is very much available on record and the same has not been scrapped and moreover there has been no request earlier for re-issue of the Advocate Commissioner Warrant to inspect the suit property with the help of Taluk Surveyor in accordance with the Field Map Book and other records. There is no sufficient or good cause or acceptable reason has been projected on the side of the revision petitioner/plaintiff as to why successive application in regard to appointment of an Advocate Commissioner has been filed time and again, that too when the suit has been in the part-heard stage and since the present suit in O.S.No.4909 of 2008 has been filed by the revision petitioner/plaintiff on the basis of praying for the relief of permanent injunction. 9. On overall assessment of the facts and circumstances of the case in cumulative fashion, this Court comes to inevitable conclusion that the request of the revision petitioner/plaintiff praying for appointment of an Advocate Commissioner in I.A.No.8719 of 2009 is only a case of luxury and not a case of necessity and it is only supernumerary and as a matter of fact, the revision petitioner/plaintiff cannot make a roving enquiry or indulge in fishing expedition since the revision petitioner/plaintiff has to prove very much his possession as on the date of filing of the suit, when the suit is admittedly filed for bare injunction as against the defendant which is for the Court to mention that there is no compelling reason or sufficient cause or acceptable reason which has been considered in I.A.No.8719 of 2009 praying for appointment of an Advocate Commissioner for two times and resultantly, the Civil Revision Petition fails. 10. In the result, the Civil Revision Petition is dismissed. The order passed by the trial Court in I.A.No.8719 of 2009 in O.S.No.4909 of 2008 is confirmed by this Court for the reasons assigned in this revision. 10. In the result, the Civil Revision Petition is dismissed. The order passed by the trial Court in I.A.No.8719 of 2009 in O.S.No.4909 of 2008 is confirmed by this Court for the reasons assigned in this revision. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition No.1 of 2009 is closed. Since these two suits viz., O.S.No.4909 of 2008 and 4926 of 2008 are pending on the file of the learned XIV Assistant Judge, City Civil Court, Chennai in part-heard stage, the trial Court in the fitness of things is directed to dispose of the said suits within a period of four months from the date of receipt of copy of this order and the parties are directed to lend their helping hand, so that the trial Court can dispose of these two suits in a complete and comprehensive manner so as to give a quietus to the controversies/disputes involved in the suits once and for all and to report compliance to this Court without fail uninfluenced with any of the observations made by this Court in this revision.