1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.10.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.686 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Sundaram .. Petitioner Vs. 1.Annakodi 2.Pandichelvam 3.Uma Devi 4.Thangachelvi .. Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 21.01.2011 passed in Interlocutory Application No.463 of 2010 in Original Suit No.335 of 2008 by the District Munsif Court, Tirumangalam. For Petitioner : Mr.R.R.Kannan For Respondents : Mr.G.Rajaraman ORDER The order dated 21.01.2011 passed in Interlocutory Application No.463 of 2010 in Original Suit No.335 of 2008 by the District Munsif Court, Tirumangalam is being challenged in the present Civil Revision Petition. 2. The respondents herein as plaintiffs have instituted Original Suit No.335 of 2008 on the file of the Court below for the reliefs of declaration and perpetual injunction, wherein the present revision petitioner has been shown as sole defendant. During pendency of the same, the petition in question has been filed in Interlocutory Application No.463 of 2010 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. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioner/defendant as revision petitioner. 3. The learned counsel appearing for the revision petitioner has contended that the wall in question is a common wall and immediately on the northern side of the wall, the house of the defendant is situate and further it touches with the suit wall and during pendency of the suit, the plaintiffs have put up window and pigeon holes and under the said circumstance for the purpose of noting down the physical features, the present petition has been filed and the Court below without considering the https://hcservices.ecourts.gov.in/hcservices/ 2 nature of the relief sought for in the present petition has erroneously dismissed the same and therefore the dismissal order passed by the Court below is liable to be set aside. 4. Per contra, the learned counsel appearing for the respondents/plaintiffs has contended that Original Suit No.335 of 2008 has been instituted only in respect of northern wall of the house of the plaintiffs and the same is their exclusive wall, in which the defendant is not having any semblance of right and under the said circumstances Original Suit No.335 of 2008 has been instituted for the reliefs of declaration and perpetual injunction and in Original Suit No.335 of 2008, evidence on the side of the plaintiffs has been let in and now the suit stands for adducing evidence on the side of the defendant and under the said circumstances the present petition has been filed and the Court below after considering all the contentions raised on either side has rightly dismissed the same and therefore the dismissal order passed by the Court below need not be set aside. 5. For considering the rival submissions made on either side, the Court has to look into the description of suit property and also the nature of the reliefs sought for in the present petition. In the description of suit property, it has been clearly mentioned that on the northern side of the suit property vacant site of the defendant is situate. In paragraph No.4 of the written statement, it has been specifically stated that the house of the defendant is situate on the northern side of the suit wall and its southern portion touches the suit wall. 6. Of course, it is true that in the affidavit filed in the present petition, it has been clearly stated that during pendency of the suit, the plaintiffs have put up some windows and pigeon holes. But in the relief, it has been specifically stated that only for noting down the physical features, appointment of an Advocate Commissioner is sought for. 7. It has already been stated that in the description of suit property, it has been mentioned that on the northern side of the suit wall, vacant site of the defendant is situate. But the specific stand taken on the side of the defendant is that on the northern side of the suit wall, the house of the defendant is situate and its southern portion touches the suit wall. Under the said circumstances, for noting down the physical features, appointment of an Advocate Commissioner is very much essential. But the Court below without considering the nature of the defence taken on the side of the defendant as well as nature of the exclusive claim made on the side of the plaintiffs, has erroneously dismissed the present petition and in view of the discussion made earlier, this Court is of the view to set aside the order passed in Interlocutory Application No.463 of 2010 in Original Suit No.335 of 2008. 8. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.463 of 2010 in Original Suit No.335 of 2008 by the District Munsif Court, Tirumangalam is set aside and the petition filed in Interlocutory Application No.463 of 2010 in Original Suit No.335 of 2008 is allowed without costs and the District Munsif Court, Tirumangalam is directed to appoint an Advocate Commissioner. The District Munsif Court, Tirumangalam is also directed to dispose of Original Suit No.335 of 2008 before the end of January, 2012 and https://hcservices.ecourts.gov.in/hcservices/ 3 report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is closed. SD/- Assistant Registrar(RTI) /True copy/ Sub Assistant Registrar(CS) To The District Munsif, Tirumangalam. Copy to : The Section Officer, Judicial Department, Madurai Bench of Madras High Court, Madurai. (for watching report) +1 CC to Mr.R.R.Kannan, Advocate, sR.No.36476 +1 CC to Mr.G.Rajaraman, Advocate, sR.No.36860 smn C.R.P(PD)(MD)No.686 of 2011 and M.P(MD)No.1 of 2011 20.10.2011 TR : 31.10.2011 : 3p/5c https://hcservices.ecourts.gov.in/hcservices/