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2013 DIGILAW 1281 (MAD)

S. Deivathal v. A. Palanisamy Kounder

2013-03-07

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. The petitioners are the defendants in a suit for permanent injunction filed by the respondents herein. While they filed their written statement in the said suit in O.S.No.276 of 2006 on the file of the District Munsif Court, Avinashi, the petitioners also raised counter claim by paying a court fee and sought the relief of declaration and for injunction restraining the plaintiffs from disturbing their joint possession. It is seen that in the said suit, an Advocate Commissioner was appointed at the instance of the plaintiffs earlier to note down the physical features. At the time of inspection by the Commissioner, the petitioners herein filed a memo and sought the Commissioner to measure the suit property by comparing with the documents in their possession. It is seen that the said Commissioner filed a report before the Court below. As the Commissioner refused to accept the request of the petitioners to measure the suit property by comparing with their documents along with the documents produced by the respondents, the present application in I.A.No.1099 of 2010 came to be filed by the petitioners seeking for a direction to the Commissioner to re-visit the suit property and to measure the same with the assistance of a Taluk Surveyor and to note down the physical features and thereafter to file a detailed report with plan consisting measurements. 2. The said application was resisted by the respondents by contending that the suit is one for injunction and therefore, there is no necessity for the Commissioner to re-visit the suit property. 3. The Court below rejected the application filed by the petitioners on the ground that the suit is one for bare injunction and therefore, there is no necessity for directing the Commissioner to re-visit the suit property. It is also observed by the Court below that in a suit for bare injunction, it has to be seen, based on the evidence let in by the parties, as to whether the plaintiffs were in possession of the suit property or not and for such purpose, there is no necessity for the Commissioner to re-visit the suit property. Aggrieved by the order of the Court below, the present Civil Revision Petition has been filed. 4. Heard learned counsel appearing for the petitioner. Though notice was served on the respondent, he is not present either in person or through counsel. Aggrieved by the order of the Court below, the present Civil Revision Petition has been filed. 4. Heard learned counsel appearing for the petitioner. Though notice was served on the respondent, he is not present either in person or through counsel. His name is also printed in the cause list. 5. The Court below rejected the application filed by the petitioners by erroneously presuming that the suit is one for bare injunction without reference to the written statement filed by the petitioners herein, whereby, a counter claim is also prayed for by paying separate court fee. 6. A perusal of the written statement filed by the petitioners shows that they have sought for a counter claim, whereby, a relief of declaration to the suit property and for a consequential injunction were sought for. If that be the position, the Court below is not justified in rejecting the application solely on the ground that the suit is only for bare injunction. Even otherwise, the Court has already appointed an Advocate Commissioner at the instance of the plaintiffs. When the Advocate Commissioner was appointed by the Court below in a suit for bare injunction, there is nothing wrong in directing the Advocate Commissioner to re-visit the suit property, especially when the petitioners have complained that the Advocate Commissioner has not considered their objection and further request for measuring the suit property by comparing with the documents filed by either side. 7. Therefore, I am of the view that the order passed by the Court below is not correct and not passed by considering the nature of the suit pending between the parties. Accordingly, this Civil Revision Petition is allowed and the order passed by the Court below is set aside. Consequently, I.A.No.1099 of 2010 is allowed. No costs. Consequently, M.P.No.1 of 2011 is closed.