1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.01.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.122 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Manikantan 2.Narayani .. Petitioners/Defendants 1 & 2 Vs. 1.Shahul Hameed 2.Ponnayyan .. Respondents/Plaintiff & 3rd Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 01.10.2010 passed in Interlocutory Application No.210 of 2008 in Original Suit No.148 of 2008 by the First Additional District Munsif Court, Kuzhithurai. For Petitioners : Mr.K.N.Thampi ORDER The impugned order dated 01.10.2010 passed in Interlocutory Application No.210 of 2008 in Original Suit No.148 of 2008 by the First Additional District Munsif Court, Kuzhithurai is being challenged in the present Civil Revision Petition. 2. The first respondent herein as plaintiff has instituted Original Suit No.148 of 2008 on the file of the Court below for the relief of perpetual injunction, wherein the present revision petitioners have been shown as defendants 1 and 2. During pendency of the same, the petition in question has been filed in Interlocutory Application No.210 of 2008 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner and the Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred. 3. Considering the nature of the relief sought for in the petition-in-question as well as the nature of the order passed by the Court below, notice need not be sent to the respondents and the present Civil Revision Petition is disposed of on merits at the stage of admission. 4. The learned counsel appearing for the revision petitioners has befittingly drawn the attention of this Court to the averments made in paragraph No.5 of the written statement, wherein it has been stated like thus: "The description of the suit property is not correct. There is no property on land measuring 20 cents as described in the plaint schedule. The plaint schedule property is an imaginary property and hence plaintiff is not entitled to get any relief in respect of the alleged suit property in the suit". https://hcservices.ecourts.gov.in/hcservices/ 2 5. The present petition has been filed so as to appoint an Advocate Commissioner for the purpose mentioned therein. The Court below has observed like thus: "On perusal of the plaint and written statement averments, this Court found that there is no dispute between the parties with regard to measurement or physical features of the properties". After making the aforesaid observations, the Court below has dismissed the petition. 6. It has already been pointed out that in paragraph No.5 of the written statement, a clear denial has been made with regard to existence of the suit property and further it is averred that no suit property is in existence as claimed on the side of the plaintiff. Under the said circumstances, the observation made by the Court below is totally erroneous and the Court below without seeing the written statement filed on the side of the revision petitioners has erroneously dismissed the petition filed in Interlocutory Application No.210 of 2008 and therefore the order passed by the Court below is liable to be set aside and the petition filed in Interlocutory Application No.210 of 2008 is liable to be remitted to the file of the Court below. 7. In fine, this Civil Revision Petition is allowed without costs at the stage of admission and the impugned order passed in Interlocutory Application No.210 of 2008 in Original Suit No.148 of 2008 by the First Additional District Munsif Court, Kuzhithurai is set aside and the petition filed in Interlocutory Application No.210 of 2008 is remitted to the file of the Court below and the Court below is strictly directed to pass suitable orders in consonance with the averments made in the plaint as well as in the written statement. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar (C.S) To The First Additional District Munsif, Kuzhithurai. + 1 cc to Mr.K.N.Thambi, Advocate, SR No.2539 C.R.P(PD)(MD)No.122 of 2011 and M.P(MD)No.1 of 2011 22.01.2011 smn RJ/2.2.11 2p/3c https://hcservices.ecourts.gov.in/hcservices/