1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION (PD)(MD)No.2412 of 2011 and MISCELLANEOUS PETITION (MD) No.1 of 2011 Shanmugam .. Petitioner Vs. 1.Parvathi Ammal 2.Natchimuthu 3.Minor Sakthisaravanan represented by guardian and father, second respondent, Natchimuthu. 4.R.Sakuntala .. Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 29.09.2011 passed in Interlocutory Application No.288 of 2011 in Original Suit No.121 of 2008 by the Additional Sub Court, Karur. For Petitioner : Mr.G.R.Swaminathan ORDER This Civil Revision Petition has been directed against the order dated 29.09.2011 passed in Interlocutory Application No.288 of 2011 in Original Suit No.121 of 2008 by the Additional Sub Court, Karur. 2. The fourth respondent herein as plaintiff has instituted Original Suit No.121 of 2008 on the file of the Court below for the reliefs of partition and separate possession of her share, wherein the present respondents 1 to 3 and revision petitioner have been shown as defendants. During pendency of the same, the defendants 1 to 3 as petitioners have filed Interlocutory Application No.288 of 2011 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose mentioned therein. The Court below has allowed the same. Against the order passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the fourth defendant as revision petitioner. 3. Considering the nature of the relief sought for in Original Suit No.121 of 2008 as well as the nature of the relief sought for in Interlocutory Application No.288 of 2011 and the order passed therein https://hcservices.ecourts.gov.in/hcservices/ 2 by the Court below, notice need not be sent to the respondents and this Civil Revision Petition is disposed of on merits at the stage of admission. 4. It is an admitted fact that Original Suit No.121 of 2008 has been instituted for the reliefs of partition and separate possession, wherein a plea has been raised to the effect that already partition has been effected and in pursuance of the same in S.F.No.80, the revision petitioner/fourth defendant has been running a brick kiln and only for the purpose of noting down its physical features, the present petition has been filed. 5. Considering the fact that Original Suit No.121 of 2008 has been instituted for the reliefs of partition and separate possession and also considering that the revision petitioner/ fourth defendant is one of the sharers, the relief sought for in Interlocutory Application No.288 of 2011 is totally unwarranted. As stated earlier, a specific stand has been taken on the side of the defendants 1 to 3 to the effect that already partition has been effected and the same can be established by way of adducing independent evidence. Since the fourth defendant is one of the sharers of the suit properties, he is entitled to enjoy the same as he likes. Therefore for the purpose of proving the alleged enjoyment of the revision petitioner/fourth defendant, question of appointment of an Advocate Commissioner does not arise. The Court below without considering the nature of the relief sought for in Original Suit No.121 of 2008 has erroneously allowed the present petition and therefore the order passed by the Court below is totally incorrect and the same is liable to be set aside. 6. In fine, this Civil Revision Petition is allowed without costs at the stage of admission and the order passed in Interlocutory Application No.288 of 2011 in Original Suit No.121 of 2008 by the Additional Sub Court, Karur is set aside and the petition filed in Interlocutory Application No.288 of 2011 in Original Suit No.121 of 2008 is dismissed without costs and the Additional Sub Court, Karur is directed to dispose of Original Suit No.121 of 2008 before the end of February, 2012 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To The Additional Subordinate Judge, Karur. Copy to: The Section Officer, Judicial Department, Madurai Bench of Madras High Court, Madurai. C.R.P(PD)(MD)No.2412 of 2011 smn and M.P(MD)No.1 of 2011 NSV/5.1.12/2P/3C 22.12.2011 https://hcservices.ecourts.gov.in/hcservices/