1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.2370 of 2011 & MISCELLANEOUS PETITION No.1 of 2011 S.Krishnamoorthy :Petitioner/Plaintiff -Vs- 1.M.Ramalingam 2.R.Sundar 3.Minor Sudarson (Minor third respondent is represented by his father and natural guardian, second respondent):Respondents/Defendants Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 26.08.2011 passed in Interlocutory Application No.334 of 2011 in Original Suit No.1155 of 2010 by the Second Additional Sub Court, Madurai. For Petitioner:Mr.V.Nagendran ORDER This Civil Revision Petition has been directed against the order dated 26.08.2011 passed in Interlocutory Application No.334 of 2011 in Original Suit No.1155 of 2010 by the Second Additional Sub Court, Madurai. 2.The revision petitioner herein as plaintiff has instituted Original Suit No.1155 of 2010 on the file of the Court below for the relief of perpetual injunction, wherein the present respondents have been shown as defendants 1 to 3.During pendency of the same, an application has been filed in Interlocutory Application No.1184 of 2010, praying to appoint an Advocate Commissioner, wherein an Advocate Commissioner has been appointed and he inspected the suit property and filed his report and plan and subsequently the present petition has been filed in Interlocutory Application No.334 of 2011 under Order XXVI, Rule 1 of the Code of Civil Procedure, 1908 so as to strike out the Commissioner's report and plan for the reasons set out therein. The Court below has dismissed the petition. Against the dismissal order, the present Civil Revision Petition has been preferred. 3.Considering the nature of the reliefs sought for in Interlocutory Application No.334 of 2011 as well as the order passed 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.The learned counsel appearing for the revision petitioner has contended that the Commissioner, who has been appointed earlier, failed to note down some important materials and under the said circumstances, his report and plan have become useless and due to that the present petition has been filed for the relief sought for therein, but the Court below without considering the nature of the reliefs sought for in the present petition has erroneously dismissed the same and therefore the order passed by the Court below is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 2 5.In Interlocutory Application No.334 of 2011, two kinds of reliefs have been sought for. The first and foremost relief is to strike out the Commissioner's report and plan and the second relief is to re-issue commission warrant to some other Advocate. 6.Considering the fact that no serious allegation has been levelled against the Commissioner, who has been appointed in Interlocutory Application No.1184 of 2010 in respect of the nature of work-done by him, this Court is of the view that the Commissioner's report and plan filed in Interlocutory Application No.1184 of 2010 need not be struck down and at the same time the commission warrant can be re-issued to the same Commissioner With the above observations, the order passed by the Court below is liable to be modified. 7.In fine, this Civil Revision Petition is allowed in part without costs at the stage of admission and the order passed in Interlocutory Application No.334 of 2011 in Original Suit No.1155 of 2010 by the Second Additional Sub Court, Madurai is modified as follows: The Second Additional Sub Court, Madurai is directed to re-issue the commission warrant to the same Commissioner and also directed to issue instructions to the Commissioner on the basis of the defects pointed out on the side of the revision petitioner. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (AS) / TRUE COPY / Sub Assistant Registrar To: The Second Additional Subordinate Judge, Madurai. Smn RP/02.01.2012/2P/2C. C.R.P(PD)(MD)No.2370 of 2011 and M.P(MD)No.1 of 2011 20.12.2011 https://hcservices.ecourts.gov.in/hcservices/