1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.10.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.458 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Hathija Gani .. Petitioner Vs. Vimala Devi .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order and decretal order dated 02.09.2010 passed in Interlocutory Application No.976 of 2008 in Interlocutory Application No.664 of 2000 in Original Suit No.106 of 2000 by the Principal District Munsif Court, Tiruchirappalli. For Petitioner : Mr.D.Rajendran ORDER The order dated 02.09.2010 passed in Interlocutory Application No.976 of 2008 in Interlocutory Application No.664 of 2000 in Original Suit No.106 of 2000 by the Principal District Munsif Court, Tiruchirappalli is being challenged in the present Civil Revision Petition. 2. The revision petitioner herein as plaintiff has instituted Original Suit No.106 of 2000 on the file of the Court below praying to pass a decree of mandatory injunction, wherein the present respondent has been shown as defendant. During pendency of the same, the respondent/defendant as petitioner has filed Interlocutory Application No.664 of 2000 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose mentioned therein. In Interlocutory Application No.664 of 2000, an Advocate Commissioner has been appointed and since the petitioner therein has not taken proper steps so as to execute the warrant, Interlocutory Application No.664 of 2000 has been closed and subsequently as per order passed in Interlocutory Application No.51 of 2008, the application filed in Interlocutory Application No.664 of 2000 has been restored and directed the Commissioner, who has been appointed earlier, to visit the suit property and file his report and plan and accordingly he visited the suit property and filed his report and plan and in order to scrap the same and also to appoint an Advocate Commissioner afresh, the present petition has been filed in Interlocutory Application No.976 of 2008. The Court below after considering the contentions raised on either side has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been filed at the instance of the petitioner/plaintiff as revision petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2 3. Considering the nature of the relief sought for in Original Suit No.106 of 2000 as well as the final order passed in Interlocutory Application No.664 of 2000 and also the nature of the relief sought for in Interlocutory Application No.976 of 2008, notice need not be sent to the respondent and this Civil Revision Petition is disposed of on merits at the stage of admission on the basis of the contention putforth on the side of the revision petitioner. 4. The learned counsel appearing for the revision petitioner has repeatedly contended that in Original Suit No.106 of 2000 relief of mandatory injunction has been sought for and under the said circumstances appointment of an Advocate Commissioner is totally unwarranted and further Interlocutory Application No.664 of 2000 has been filed by the respondent as petitioner, wherein an Advocate Commissioner has been appointed and since the respondent/petitioner has not taken proper steps so as to execute the warrant, Interlocutory Application No.664 of 2000 has been closed and subsequently on the basis of the order passed in Interlocutory Application No.51 of 2008, Interlocutory Application No.664 of 2000 has been restored and thereby directed the Commissioner, who has been appointed earlier to execute the warrant and he filed his report and plan and the same are not in consonance with the physical features of the suit property and under the said circumstances the same are liable to be scrapped and for that purpose the present petition has been filed, but the Court below without considering the contention putforth on the side of the revision petitioner has erroneously dismissed the present petition and therefore the dismissal order passed by the Court below is liable to be set aside. 5. It is an admitted fact that Original Suit No.106 of 2000 has been instituted for getting the relief of mandatory injunction. It is seen from the records that the disputed property is situate immediately on the northern side of the property of the defendant. Since Original Suit No.106 of 2000 has been instituted for the relief of mandatory injunction and since the suit property is situate immediately on the northern side of the property of the defendant, appointment of an Advocate Commissioner is very much essential for the purpose of noting down the lie of the suit property. 6. The respondent as petitioner has filed Interlocutory Application No.664 of 2000 so as to appoint an Advocate Commissioner, wherein an Advocate Commissioner has been appointed and subsequently the same has been closed due to laxity on the part of the respondent and subsequently she has filed Interlocutory Application No.51 of 2008 and as per order passed therein, Interlocutory Application No.664 of 2000 has been restored and thereby directed the Commissioner, who has been appointed earlier to visit the suit property and accordingly he filed his report and plan. The present petition has been filed so as to scrap the Commissioner's report and plan. Considering the fact that no specific allegation has been made against the Advocate Commissioner, question of scrapping the report and plan of the Commissioner does not arise and if there is any flaw in the Commissioner's report and plan or if the Commissioner has omitted to mention certain material facts in his report and plan, the revision petitioner can very well take steps so as to re- issue the commission warrant to the same Commissioner. But in the instant petition, such relief has not been sought for. https://hcservices.ecourts.gov.in/hcservices/ 3 7. The Court below after considering all the contentions urged on either side has rightly dismissed Interlocutory Application No.976 of 2008. In view of the discussion made earlier, this Court has not found any attractive force in the contention urged on the side of the revision petitioner and altogether the present Civil Revision Petition deserves to be dismissed. 8. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs at the stage of admission and the order passed in Interlocutory Application No.976 of 2008 in Interlocutory Application No.664 of 2000 in Original Suit No.106 of 2000 by the Principal District Munsif Court, Tiruchirappalli is confirmed. However the revision petitioner is at liberty to file a fresh petition so as to re-issue the commission warrant to the same Commissioner or if the Commissioner has ceased his practice, the revision petitioner is at liberty to seek appointment of an Advocate Commissioner afresh. Consequently, connected Miscellaneous Petition is dismissed. smn Sd/- Assistant Registrar[Crl side] /True copy/ Sub Assistant Registrar To The Principal District Munsif Court, Tiruchirappalli. +1 cc to M/s.D.Rajendiran, Advocate SR.No.35100. C.R.P(PD)(MD)No.458 of 2011 and M.P(MD)No.1 of 2011 Dated:11.10.2011 3P/3C RPB 20.10.2011 https://hcservices.ecourts.gov.in/hcservices/