Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 4967 (MAD)

Dr. Sundara Rajan v. Susana Ravi Sekar

2010-11-10

R.S.RAMANATHAN

body2010
Judgment :- 1. The defendant in O.S.No.465 of 2010 on the file of the Principal District Munsif Court, Salem is the revision petitioner. 2. The respondent/ plaintiff filed the above suit for injunction restraining the revision petitioner from interfering with the peaceful possession and enjoyment of the property by trespassing into the suit property. The respondent/ plaintiff also filed an application in I.A.No.1051 of 2010 for appointment of a Commissioner to measure the suit property as per the plan in the Compromise Decree in O.S.No.191 of 1991 and note the physical features and it is alleged in the application that the respondent suspected that the revision petitioner might have encroached upon the suit property during his absence at Chennai. That application was allowed and Advocate Commissioner was appointed and aggrieved by the same, this revision is filed. 3. It is submitted by Mr. D.Ravichander the learned counsel for the revision petitioner that the lower Court allowed the application for appointment of Commissioner holding that no prejudice would be caused to the defendant/revision petitioner and relied upon the Judgement reported in 2008 (3) CTC 597 in the matter of K.M.A. Wahab and 5 others Vs. Eswaran and another, wherein this Court has held that an application for appointment of Commissioner cannot be ordered on the ground that no prejudice would be caused to the other side. He further submitted that the application was filed to collect the evidence and that was also deprecated in the above Judgement. 4. Mr. S.Kaithamalaikumaran, the learned counsel for the respondent/ plaintiff submitted that the application was filed to measure the property as per the plan in the Compromise Decree in O.S.No.191 of 1991. Even in the plaint it has been stated that the plaintiff is going to apply for appointment of Commissioner to measure the property as per the plan attached to O.S.No.191 of 1991 and the plaintiff/ respondent is the absentee landlord and in his absence some encroachment had been made and therefore to find out the exact measurement of the property as per the plan attached to the Decree in O.S.No.191 of 1991 this application was filed and by measuring the property and by noting the physical features no prejudice would be caused to the revision petitioner and therefore the order of the lower Court does not call for any interference. 5. 5. According to me, the order of the lower Court cannot be sustained. Admittedly, the suit is filed for injunction stating that the plaintiff/ respondent is in possession of the suit property. Even though in the affidavit filed in support of the petition for appointment of Commissioner it is stated that the plaintiff suspected that the defendant/ revision petitioner has encroached the suit property, the plaintiff/ respondent has not filed any application for amending the plaint so as to include the prayer of recovery of possession. Therefore, the plaintiff has come to Court with the specific stand that he is in possession of the suit property and his possession is attempted to be interfered with by the revision petitioner. In such a case, there is no need to note the physical features of the suit property and there is no need to measure the suit property as per the plan attached to the Decree in O.S.No.191 of 1991. As rightly contended by the learned counsel for the revision petitioner that the appointment of Commissioner would only facilitate the collection of evidence which is not permissible under law. Further, a Commissioner cannot be appointed on the ground that it would not cause any prejudice to other side as held by this Court in the Judgement referred to above. 6. Hence, the order of the lower Court is set aside and the Civil Revision Petition is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.