Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 496 (MAD)

S. Periyasamy v. S. Sundari & Others

2009-02-10

G.RAJASURIA

body2009
Judgment :- Inveighing the order dated 29. 2008, passed by the learned Sub Court, Bhavani, Erode District, in I.A.No.300 of 2008 in O.S.No.60 of 2008, this civil revision petition is focussed. 2. Heard both sides. 3. The gist and kernel, pith and marrow of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus: (i) The revision petitioner/plaintiff filed the suit O.S.No.60 of 2008 seeking the following reliefs. "a) declaring that the plaintiff is the absolute owner of the suit property; b) restraining the defendants their men and agents from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit property by means of a permanent injunction; c) directing the defendants to pay the costs of the suit; and d) and pass such other suitable orders under the circumstances of this case as deemed fit and proper by this Honble Court." (ii) During the pendency of the suit, I.A.No.300 of 2008 was filed by the respondents/defendants under Order 26 Rule 9 of CPC so as to get an Advocate Commissioner appointed to visit the suit property and note the physical features and also gather other particulars. The lower Court allowed the application. Whereupon, the plaintiff being aggrieved by the same, filed this revision petition on various grounds. 4. The learned counsel for the revision petitioner would develop his argument placing reliance on the grounds of revision to the effect that in the order appointing Commissioner which is found enclosed in the typed set of papers, various directions are found given to the Commissioner which are not at all within the purview of Order 26 Rule 9 CPC; a Commissioner should not be directed to make a roving and broad-based enquiry for the purpose of gathering materials so as to help any one of the parties to the suit, but in this case, the Commissioner has been directed to verify the revenue records and find out particulars about the survey number and also in whose name the property stands. 5. Whereas, the learned counsel for the respondents/defendants would seek adjournment. In this factual matrix, there is absolutely no necessity to adjourn the matter. 6. A bare perusal of the records including the impugned order of the lower Court would reveal that as many as four directions were given to the Commissioner. 5. Whereas, the learned counsel for the respondents/defendants would seek adjournment. In this factual matrix, there is absolutely no necessity to adjourn the matter. 6. A bare perusal of the records including the impugned order of the lower Court would reveal that as many as four directions were given to the Commissioner. The first direction is for directing the Commissioner to visit the suit property and measure the same which cannot be found fault with. The second direction is to the effect that the Commissioner should find out as to what is the survey number of the suit property and in whose name the said property stands. This in my opinion is beyond the scope of Order 26 Rule 9 of C.P.C. It is for the party concerned to gather those relevant facts and obtain necessary documentary evidence and place before the Court. Hence the said direction No.2 shall stand deleted. Direction No.3 to the Commissioner is to note the physical features, which cannot be found fault with. Direction No.4 is to find out as to any construction work is going on and if so, to what extent and the said direction is also legally possible under Order 26 Rule 29 of C.P.C. As such, with the above observations, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed. 7. As requested by the learned counsel for the revision petitioner, direction is issued to the lower Court to dispose of the suit O.S.No.60 of 2008 itself within a period of three months from the date of receipt of a copy of this order.