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2009 DIGILAW 653 (MAD)

Jayaraman & Another v. Gnanasounary

2009-03-02

G.RAJASURIA

body2009
Judgment This civil revision petition is filed against the order dated 16. 2007 passed in I.A.1510 of 2007 in I.A.No.877 of 2007 in O.S.No.346 of 2007 by the Principal District Munsif, Puducherry. Inveighing the order dated 16. 2007 passed in I.A.1510 of 2007 in I.A.No.877 of 2007 in O.S.No.346 of 2007 by the Principal District Munsif, Puducherry, this civil revision petition is focussed. 2. The summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:- The respondent/plaintiff filed the suit O.S.No.346 of 2007 before the Principal District Munsif, Puducherry, seeking the following relief:- "to grant permanent injunction restraining the defendants, their men, agents or any one claiming through them from disturbing or interfering with plaintiffs peaceful possession of A and B schedule mentioned suit properties and restraining the defendants, their men, agent or any one claiming through them from laying the boundary stones and fence or whatever, construct anything on the schedule mentioned suit properties." I.A.No.877 of 2007 was filed by the plaintiff seeking ex-parte injunction and it appears, the lower Court also granted such interim injunction. The plaintiff also filed one other I.A.No.1510 of 2007 under Order XXVI Rule 9 read with Section 151 of C.P.C. seeking the following relief: "to pass an ex-parte order appointing advocate commissioner to visit the under mentioned suit properties and note down the physical features and measure the petition mentioned suit properties with assistance of qualified surveyor to fix my boundaries and extent by production of documents and revenue records." The lower Court allowed the I.A. by appointing an Advocate Commissioner. Being disconcerted and aggrieved by the order of the lower Court, this civil revision petition has been filed on various grounds inter alia thus: the lower Court, ignoring the scope of the suit, which is one for injunction, simply ordered for appointment of Commissioner, so as to measure the property and fix the boundaries. 3. A bare poring over and perusal of the relevant records, including the copy of the order of the lower Court, would display and demonstrate, evince and expatiate that the suit itself is only for bare injunction relating to the A and B scheduled properties of the plaint and not for any other substantive relief. 3. A bare poring over and perusal of the relevant records, including the copy of the order of the lower Court, would display and demonstrate, evince and expatiate that the suit itself is only for bare injunction relating to the A and B scheduled properties of the plaint and not for any other substantive relief. In such a case, ex facie and prima facie it is clear that the order of the lower Court in appointing an Advocate Commissioner to fix the boundaries is beyond the scope of the suit itself. If at all the plaintiff had any doubt about the boundaries or if he wants the boundaries for his property to be fixed then in the suit itself there should be a prayer to that effect for measurement and to get the boundaries fixed, including the prayer for declaration of his title. It is not something uncommon or legally impermissible to file a suit for declaration and for getting the boundaries fixed with the help of the Court appointed Advocate Commissioner. But in this case, consciously the plaintiff has not chosen to seek for such relief. Per contra the plaintiff assumed and presumed that he is in possession and enjoyment of the suit property by metes and bounds and accordingly prayed for declaration in the suit. In such a case, if the Advocate Commissioner is appointed to fix the boundaries it would go beyond the scope of the suit. In a bare injunction suit what one could countenance and uphold at the most is only a prayer for appointment of an Advocate Commissioner to note the physical features of the suit property, so that the Court would be in a position to appreciate the oral evidence in a better manner. Hence, this revision is partly allowed to the effect that the scope of the Advocate Commissioner should be restricted to the extent the Commissioner visiting the suit property and noting the physical features with the help of a Surveyor and the mission of the Commission shall not be for the purpose of fixing the boundaries of the suit property. Consequently, connected miscellaneous petition is dismissed. No costs.