1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1315 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Rajendran .. Petitioner/Respondent Vs. 1.Marimuthu 2.Lakshmi ..Respondents/Petitioners Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 22.06.2011 passed in Interlocutory Application No.103 of 2011 in Original Suit No.88 of 2011 by the District Munsif cum Judicial Magistrate's Court, Kodaikanal. For Petitioner : Mr.A.Arumugam For Respondents : M/s.S.Vijayashanthi ORDER The order dated 22.06.2011 passed in Interlocutory Application No.103 of 2011 in Original Suit No.88 of 2011 by the District Munsif cum Judicial Magistrate's Court, Kodaikanal is being challenged in the present Civil Revision Petition. 2. The respondents herein as plaintiffs have instituted Original Suit No.88 of 2011 on the file of the Court below for the reliefs of declaration, perpetual injunction and also for recovery of possession, wherein the present revision petitioner has been shown as first defendant. During pendency of the same, the present petition has been filed in Interlocutory Application No.103 of 2011 under Order XXVI, Rule of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose mentioned therein. The Court below has appointed an Advocate Commissioner and thereby directed him to note down the physical features and also to find out as to whether the suit properties are fit for cultivation. Against the order passed by the Court below, the present Civil Revision Petition has been filed. 3. The learned counsel appearing for the revision petitioner has contended that the revision petitioner as plaintiff has already filed Original Suit No.148 of 2009 for the reliefs of declaration and perpetual injunction in respect of the suit first item admeasuring 1 acre 26 cents of land, wherein the present respondents/petitioners/plaintiffs have been shown as defendants and in Original Suit No.148 of 2009, no attempt has https://hcservices.ecourts.gov.in/hcservices/ 2 been made so as to take out an Advocate Commissioner and Original Suit No.88 of 2011 has been instituted for the reliefs of declaration, perpetual injunction and also for recovery of possession, wherein the present application has been filed in Interlocutory Application No.103 of 2011 and even without giving notice to the revision petitioner, an Advocate Commissioner has been appointed and thereby directed him to note down the physical features and also to note down as to whether the suit properties are fit for cultivation and the Advocate Commissioner is totally unfit for ascertaining as to whether the suit properties are fit for cultivation and under the said circumstances the present petition is totally unwarranted and the Court below without considering the purpose for which the present petition has been filed, has erroneously appointed an Advocate Commissioner and therefore the order passed in Interlocutory Application No.103 of 2011 is liable to be set aside. 4. The learned counsel appearing for the respondents/petitioners/plaintiffs has contended that even though in Interlocutory Application No.103 of 2011, an Advocate Commissioner has been appointed and he has been directed to note down the physical features and also to ascertain as to whether the suit properties are fit for cultivation. The Advocate Commissioner has filed his report only with regard to physical features of the suit properties and he has not stated anything in his report about the competency of the suit properties for cultivation and therefore the present Civil Revision Petition deserves to be dismissed. 5. From the rival representations made on either side, it is learnt that the revision petitioner as plaintiff has already filed Original Suit No.148 of 2009 for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as defendants. The present respondents as plaintiffs have instituted Original Suit No.88 of 2011 for the reliefs of declaration, perpetual injunction and also for recovery of possession. In the plaint filed in Original Suit No.88 of 2011, it has been stated that the suit first item is admeasuring 1 acre 26 cents of land and suit second item is admeasuring 2 acres of land. Considering the nature of the reliefs sought for in Original Suit No.88 of 2011 as well as in Original Suit No.148 of 2009, the Court can appoint an Advocate Commissioner only for limited purpose of noting down the physical features. But the Court below has directed the Advocate Commissioner to note down as to whether the suit properties are fit for cultivation. Even though the Court below has directed the Advocate Commissioner for the purposes mentioned supra, he has limited his work to the extent of noting down the physical features. Since the Advocate Commissioner has already filed a report only with regard to physical features of the suit properties, the order passed in Interlocutory Application No.103 of 2011 by the Court below need not be set aside and the present Civil Revision Petition deserves to be dismissed. 6. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs and the order passed in Interlocutory Application No.103 of 2011 in Original Suit No.88 of 2011 by the District Munsif cum Judicial Magistrate's Court, Kodaikanal is confirmed. The District Munsif cum Judicial Magistrate's Court, Kodaikanal is directed to conduct joint trial in Original Suit Nos.148 of 2009 and 88 https://hcservices.ecourts.gov.in/hcservices/ 3 of 2011 and also directed to dispose of both the suits before the end of March, 2012 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is dismissed. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR smn To The District Munsif cum Judicial Magistrate, Kodaikanal. Copy To: The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai. 1CC TO MR. K. HARIHARAN, ADVOCATE, SR: 39110: DM:2011:NOVEMBER:16:: C.R.P(PD)(MD)No.1315 of 2011 and M.P(MD)No.1 of 2011 11.11.2011 3P:4C:: https://hcservices.ecourts.gov.in/hcservices/