1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.10.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1730 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Lakshmi .. Petitioner Vs. Perumal .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 07.06.2011 passed in Interlocutory Application No.108 of 2010 in Original Suit No.164 of 2007 by the District Munsif cum Judicial Magistrate's Court, Cheranmahadevi. For Petitioner : Mr.J.Parekhkumar For Respondent : No appearance ORDER This Civil Revision Petition has been directed against the order dated 07.06.2011 passed in Interlocutory Application No.108 of 2010 in Original Suit No.164 of 2007 by the District Munsif cum Judicial Magistrate's Court, Cheranmahadevi. 2. The respondent herein as plaintiff has instituted Original Suit No.164 of 2007 on the file of the Court below praying to pass a decree of perpetual injunction, wherein the present revision petitioner has been shown as sole defendant. During pendency of the same, the respondent/plaintiff as petitioner has filed Interlocutory Application No.108 of 2010 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose mentioned therein and the same has been allowed. Against the order passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the respondent/ defendant as revision petitioner. 3. Even though, the respondent has been served with the summons, appearance has not been made and therefore this Civil Revision Petition is disposed of on merits on the basis of the contention putforth on the side of the revision petitioner. 4. The learned counsel appearing for the revision petitioner has contended that Original Suit No.164 of 2007 has been instituted for getting the relief of perpetual injunction and there is no dispute with regard to identity of the suit property and considering the fact that Original Suit No.164 of 2007 has been instituted for the relief of perpetual injunction question of appointment of an Advocate Commissioner for the purpose of noting down the physical features of the suit property does not arise and the Court below without considering the nature of the relief sought for in Original Suit No.164 of 2007 has https://hcservices.ecourts.gov.in/hcservices/ 2 erroneously allowed the petition filed in Interlocutory Application No.108 of 2010 and therefore the order passed by the Court below is liable to be set aside. 5. As rightly pointed out on the side of the revision petitioner, Original Suit No.164 of 2007 has been instituted only for the relief of perpetual injunction. The specific case of the respondent/petitioner/plaintiff is that he purchased the suit property under a registered sale deed dated 09.10.1975 and the further case of the respondent/petitioner/plaintiff is that on the southern side of the suit property, the property of the defendant is situate. The present petition has been filed under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose of noting down the physical features of the suit property. 6. Considering the fact that the plaintiff has purchased the suit property under a registered sale deed dated 09.10.1975 and also considering the fact that in Original Suit No.164 of 2007 only the relief of permanent injunction has been sought for, question of noting down the physical features of the suit property by way of appointing an Advocate Commissioner does not arise and the Court below without considering the nature of the relief sought for in Original Suit No.164 of 2007 and also without considering the nature of the relief sought for in Interlocutory Application No.108 of 2010 has erroneously allowed the same. In view of the discussion made earlier, it is very clear that the order passed in Interlocutory Application No.108 of 2010 in Original Suit No.164 of 2007 is liable to be set aside and the petition filed in Interlocutory Application No.108 of 2010 is liable to be dismissed. 7. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.108 of 2010 in Original Suit No.164 of 2007 by the District Munsif cum Judicial Magistrate's Court, Cheranmahadevi is set aside and the petition filed in Interlocutory Application No.108 of 2010 in Original Suit No.164 of 2007 is dismissed without costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(RTI Act) /TRUE COPY/ Sub Assistant Registrar To The District Munsif cum Judicial Magistrate, Cheranmahadevi. +1cc to Mr.J.Parekhkumar, Advocate SR.No.35687 C.R.P(PD)(MD)No.1730 of 2011 and M.P(MD)No.1 of 2011 12.10.2011 smn PA/28.10.2011/2P/3C https://hcservices.ecourts.gov.in/hcservices/